CHIEF JUDCi— GRANDFATHER CLAUSE
ary
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMPROVEMENTS IN JUDICIAL MACHINERY
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION
ON
S. 1130
A BILL RELATING TO CHIEF JUDGE— GRANDFATHER CLAUSE
MAY 18, 1976
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRTNTING OFFICE
78^78 0 WASHINGTON : 1976
arch FRANKLIN n^UCE LAW CENTER
Concord, New Hampshire 03301
ON DEPOSIT "**" ' ° '^^^
CHIEF JUDG^GRANDFATHER CLAUSE
■■ f
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMPROVEMENTS IN JUDICIAL MACHINERY
OF THE
COMMITTEE ON THE JTIDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION
ON
S. 1130
A BILL RELATING TO CHIEF JUDGE— GRANDFATHER CLAUSE
MAY 18, 1976
Printed for the use of the Committee on the Judiciary
m
U.S. GOVERNMENT PRINTING OFFICE
78^78 0 WASHINGTON : 1976
FRANKLIN n^UCE LAW CENTER
Concord, New Hampshire 03301
Boston P'Mlc Libiary
I, MA 02116
- icni
COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND,
JOHN L. McCLELLAN, Arkansas
PHILIP A. HART, Michigan
EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana
QUENTIN N. BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota
Mississippi, Chairman
ROMAN L. HRUSKA, Nebraska
HIRAM L. FONG, Hawaii
HUGH SCOTT, Pennsylvania
STROM THURMOND, South Carolina
CHARLES MCC. MATHIAS, Jr., Maryland
WILLIAM L. SCOTT, Virginia
Subcommittee on Improvements in Judicial Machinery
QUENTIN N. BURDICK, North Dakota, Chairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska
PHILIP A. HART, Michigan HUGH SCOTT, Pennsylvania
JAMES ABOUREZK, South Dakota WILLIAM L. SCOTT, Virginia
William P. Westphal, Chief Counsel
(n)
CONTENTS
statement of : Page
Hon. Jake Gam, U.S. Senate, Senator for the State of Utah
Hon. Ramon M. Child, U.S. district attorney, Salt Lake City, ac-
companied by James Dewey O'Brien, Acting Deputy Assistant
Attorney General of the Tax Division, William C. MeBride, As-
sistant Chief of the Criminal Section of the Tax Division, and
Rudolph W. Giuliani, Associate Deputy Attorney General
Hon. Robert B. Hansen, Deputy Attorney General, Salt Lake City,
Utah
Mr. William J. Lockhart, Salt Lake City, Utah, professor of law.
College of Law, University of Utah
Hon. David T. Lewis, chief judge, U.S. Court of Appeals, Salt Lake
City, Utah
Subcommittee inserts
(III)
S. 1130
A BILL RELATING TO SERVICE AS CHIEF JUDGE
OF A U.S, DISTRICT COURT
TUESDAY, MAY 18, 1976
U.S. Sexate,
Subcommittee ox Improvemexts ix Judicial
Machixery of the Committee ox the Judiciary,
Washington. B.C.
The subcommittee met, pursuant to notice, at 10 a.m., in room 6202,
Dirksen Office Building, Hon. Quentin N. Burdick (chairman of the
subcommittee) presiding.
Present : Senator Burdick (presiding) .
Also present: William P. "Westphal, chief counsel; Kathryn M.
Coulter, chief clerk; and Harry Dixon, staff of Senator Hruska.
Senator Burdick. Today the subcommittee has scheduled a hear-
ing on S. 1130, a bill to repeal the so-called grandfather clause which
exempted the existing chief judges of two-judge districts from the
statute which prohibits service as chief judge beyond 70 years of age.
When this age limitation was enacted on August 6, 1958, there were
32 chief judges affected by the grandfather clause.
It is my understanding that today only one of the 32 chief judges
still is serving as a chief judge. He is Willis W. Bitter, the chief
judge of the District of Utah. Judge Bitter was appointed to the
bench on October 21, 1949.
The subcommittee has received a number of letters on this bill,
both pro and con. These letters evidence a great interest in this legis-
lation; but because they present essentially hearsay or personal
opinions, I, as one member of the committee, will give them less
weight than the sworn testimony we will receive here today.
One of the letters which has been written by one TTtah lawyer to
every member of the Judiciary Committee, reads as follows: "In all
fairness without reo-ard to the judicial temperament or capacity or
integrity of Judge Willis W. Bitter, is there really legitimate reason
for having the only chief judge in the iudiciarv system over the age
of 70 saddled on the lawyers and people of Utah ? ''
In answer to that question, a "leo-itimate reason" is that in 19.58
a Federal statute provided that this judse, and 31 others, were ex-
empt from the aqe 70 requirement. But this letter illustrates the reason
why I believe that before we receive the testimony of witnesses, it
would be helpful if we can identify the specific issue raised by S.
1130.
S. 1130 does not raise the issue of whether the judge should be re-
moved from judicial office, because under present law that issue can
(1)
only be decided after impeachment by the House of Representatives.
Nor does S. 1130 raise any issue concerning possible disability of the
judge, because section 372 of title 28 U.S. Code covers such a situation.
The issue, as I perceive it to be, is whether the judge in question, who
continues to serve as chief judge of the District of Utah by virtue of the
exception made by the Congress in 1958, is for some reason unable to
perform the duties of a chief judge in an eifective and expeditious
manner.
If it can be demonstrated that he is unable to so perform, then the
subcommittee will have to make the further decision of whether repeal
of the grandfather clause is appropriate legislative action under all of
the circumstances. And, it seems to me, that one of those circumstances
involves the separation of powers principle from which has grown the
phrase "independence" of members of the Federal judiciary.
While this analysis is not intended as any ruling by the Chair on
these or other issues, it has been put forth in an effort to clarify the
matter before the subcommittee this morning.
A copy of S. 1130 will be included in the hearing record at this time
without objection.
[The above referred to bill follows : J
[S. 1130, 94th Cong., 1st sess.]
A BILL To amend the Act of August 6, 1958 (72 Stat. 497), relating to service as chief
judge of a United States district court
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That section 3 of the Act of August 6, 1958
(72 8tat. 497), is amended by changing the nist comma to a period and by striking
all of the remainder of the sentence.
The Chair now recognizes the junior Senator from Utah who is the
principal sponsor of the bill, and at whose request this hearing was
scheduled. Senator Garn, you may proceed.
Senator Garn. Thank you very much, Mr. Chairman. I do have a
very lengthy statement with a large number of inclusions. I Avould like
to summarize the statement and ask that it be included in its entirety in
the hearing record and that all of the attachments, letters, and edito-
rials also be included in the record without me taking the time of the
subcommittee to read all of them.
Senator Burdick, They will be so received without objection.
[The above referred to statement with attachments follow :]
Statement of Senator Jake Gaen Before the Subcommittee on Improvements
IN Judicial Machinery of the Senate Judiciary Committee on S. 1130
Mr. Chairman : Let me begin by expressing my personal gratitude to you for
scheduling this hearing. The assistance of the distinguished Ranking Minority
Member is also greatly appreciated. This hearing has been sought for years by
leading members of the Judicial Branch, the Bar, and concerned citizens, and
on behalf of these interested parties I express my sincere thanks.
S. 1130 will repeal the exemption to 28 U.S.C. 136 which now allows the Chief
Judge of only one United States District Court ^ to maintain his chief judgeship
after age seventy. Other witnesses will provide information of a specific nature
concerning the Judge's court administration and I will supplement that informa-
tion— leaving details to the experts. I will provide the Committee with back-
1 Some question lias arisen concerning the number of district court judges affected by
passage of S. 1130. The Administrative Oftice of the United States Courts has contirmed
that Chief Judge Willis Ritter of the United States District Court for the District of
Utah will be the only judge affected. Letter from R. Glenn Johnson, Chief, Division of
Personnel, to Jake Garn, Feb. 6, 1976.
ground information, policy considerations, and the sentiment of Utahans who
resent and regret the way the Lnited States District Court for the District of
Utah is being managed.
On April 4, 19o7, the Committee on the Judiciary of the House of Representa-
tives reported to the full House H.R. 985, a bill to require the relinquishment
of the office of chief judge of federal courts at the age of seventy-five years.
The bill was accompanied by Reijort No. 301 which contained the recommenda-
tion of the Committee that the bill pass as amended. The Committee proposed
two amenuments : first, that the age of relinquishment be raised from seventy
to seventy-five years, and second, that no judge act as chief judge until he has
been a member of the court for one year. The report also contained documents
showing the approval of the Judicial Conference of the United States, the House
of Delegates of the American Bar Association, the Attorney General's Confer-
ence on Court Congestion and Delay in Litigation, and the Department of Justice
for the seventy-year relinquishment date of the original bill.
The Committee had adopted the amendment raising the reliquishment age to
afford "proper llexibility," which presumably means that the impact on judges
and courts would be less severe when the Act took effect than if a seventy-year
relinquishment date had been retained. Although the House Committee extended
the date by five years, the basic policy of the bill remained the same :
"It is the opinion of the committee that the enactment of H.R. 985, as amended,
will improve the administration of justice in the Federal courts. There can be
no doubt that many judges who have passed the age of 75, do. are capable of
doing, excellent work in their judicial capacity, and indeed may well function
as efficient administrators of the business of their courts. Nevertheless, it cannot
be denied, as indicated in the experience of private business, that the toll of
years has a tendency to diminish celerity, promptitude and effectiveness. H.R.
Rep. No. 301, 85th Cong., 1st Sess. 2-3 (1957)."
Following the unanimous report of the Committee on the Judiciary, the House
considered H.R. 985 on May 23. 1957, and pas.sed the bill as amended by voice
vote after a motion to recommit failed 47 to 292. 103 Cong. Rec. 7575-6 (1957).
During the debate preceding passage of the bill, the following exchange
occurred which helps explain the amendment of the House Committee :
"Mr. Feighax [Ohio] ... [I]t seems to me reasonable that the age limitation
be reduced to 70, so that undue burdens would not be placed upon these elderly
distinguished jurists.
"Mr. Walter [Pennsylvania (and author of the bill)] I strongly suspect that
within a very short time there will be an attempt made to amend the bill,
because actually, as the gentleman well knows, there were two judges who did
not want to be relieved of these duties because they felt that by so doing perhaps
some of the patronage that they enjoyed might be interfered with. That was
the reason the age was changed from 70 to 75. Id at 7571."
This dialogue is included here so that we may better understand the motiva-
tions behind the Committee amendment — the motivations were political, rather
than policy. Political motivations and considerations are often justifiable, and
sometimes commendable, but they must not be confused with policy justifications
unless there is some identifiable nexus. I can find no nexus is this case. The
amendment was not made in the interest of improving the administration of
justice since it was contrary to the recommendation of the exi)erts in judicial
administration and inasmuch as it was admittedly offered to allay the opposition
of two judges. I emphasize that these facts do not demonstrate that the amend-
ment was unwise, only that it was politically motivated.
Following passage in the House, H.R. 985 was referred to the Senate Judiciary
Committee which recommended the bill's passage with one technical amendment.
8e(\ S. Rep. No. 1780, 85th Cong., 2nd Sess (1958). The bill passed the Senate
on July 8 by voice vote.
The following day. Senator Church of Idaho entered a motion to reconsider
the vote whereby H.R. 985 was passed and said motion was entered without
objection.
On July 28, 1958, Senator Church called up his motion to reconsider and by
unanimous consent the bill was reconsidered. At that time. Senator Eastland
offered two amendments, the second of which is the so-called "grandfather
clause." The first amendment changed the relinquishment age back to seventy
years', and the second amendment provided" . . . the amendment made by section
136 [relating to district courts] shall not be effective with respect to any district
having two judges in regular active service so long as the district judge holding
the position of chief judge of any such district on such date of enactment con-
4
tinues to hold such position." 104 Cong. Rec. 15250 (1958). "These amendments,"
explained Senator Eastland, "meet the approval of tne Administrative umoe
of the United States Courts and meet any known objections to the bill." Id. The
amendments were agreed to and the bill passed by voice vote.
On July 30, the House concurred in the Senate amendments and on August
6, 1958, the President approved and signed H.R. 985.
The legislative history is given for the twofold purpose of acquainting mem-
bers of this Committee with the general background of Section 3 of the Act of
August 6, 1958 (72 Stat. 497) which S. 1130 will repeal and laying a foundation
for challenging the wisdom of continuing the exception created by the "grand-
father clause."
I will not attack the principle of "grandfather clauses." It is well known that
such clauses are occasionally used to lessen opposition to pending legislation and
we recognize that this kind of compromise allows prompt legislative progress in
areas that otherwise would receive no attention, or at best delayed attention.
Such procedures are sometimes praiseworthy — falling within the best tradition
of democratic compromise — and I do not doubt that such was the case with the
Act of August 6, 1958 (also, P.L. 85-593). It is clear that Senate and House
amendments were proposed and adopted to allay political opposition to the un-
amended bill, and I think it equally clear that if such opposition would have
defeated the unamended bill then the Congress showed wisdom in passing the
compromise version. Further, Mr. Chairman, I may say that I am sympathetic
with your sentiments expressed to me in a recent letter : "... I believe that it
is bad policy for the Congress to renege on a grandfather provision which is
adopted in order to allay opposition to a bill." Letter from Quetin N. Burdick to
Jake Garn, December 1, 1975. There is wisdom in your desii'e to keep
commitments.
The above statements, however, are general statements — statements that must
permit exceptions. And just as in 1958 when circumstances persuaded Congress
to permit an exception to the general rule that chief judges relinquish that role at
age seventy, so today the facts compel us to adopt another exception and repeal
this "grandfather clause." This exception need not be based on political reality,
but can stand on merits of fact, reason, and justice.
I have stated that "grandfather clauses' ' are sometimes necessary and accepta-
ble, I have also agreed with the Distinguished Chairman that they ought not
to be reneged except under unusual circumstances, but I am resolved to see
this particular clause revoked because this situation contains more than enough
facts to classify it as "unusual." The following facts and policies have convinced
me that S. 1130 shotild pass and that this Committee ought to repeal any "grand-
father clause" when the weight of evidence becomes as burdensome as it does
in this case.
I. S. 1130 ought to pass because the same organizations that supported the
original act — and its amendments — now support repeal of the clause of exemp-
tion. Who were those organizations that supported H.R. 985 in 1957 and 1958?
The Judicial Conference, the A.B.A., and the Department of Justice : the most
objective, deliberative, and influential entities of the American judicial system.
What organizations now support S. 1130';' The Judicial Conference, which says:
"The Judicial Conference believes that this exception, . . . has outlived its
usefulness and should be eliminated. Letter from Rowland F. Kirks, Director,
Administrative Office of the United States Courts to Carl Albert, Speaker of the
House of Representatives, September 21, 1973, appended to this statement. See
also, letter of confirmation from Rowland F. Kirks to Jake Garn, May 7, 1976."
The Department of Justice, which says : "The Department of Justice concurs
in the recommendation of the Judicial Conference that this legislation be enacted.
Letter From W. Vincent Rakestraw, Assistant Attorney General, to Peter W.
Rodino, Jr., Chairman, House Judiciary Committee, May 2, 1974, appended to
this statement." ; and — although the House of Delegates of the American Bar
Association has taken no specific stand on repeal of the clause — it is believed
that its position has not changed from 1957 when it supported a bill identical to
H.R. 985, as introduced, i.e. with a relinquishment date set at seventy years and
ivithout a "grandfather clause." The Committee on Federal Judiciary said :
"Your committee is of the view that this legislation is desirable and should be
enacted. Accordingly, it recommends that the house of delegates adopt the
resolution endorsing [the identical bill]. H.R. Rept. No. 301, 85th Cong., 1st Sess.
4 (1957)."
The House of Delegates adopted the language."
II. S. 1130 ought to pass because the above-cited eminent authorities are joined
by other leaders of the bar and bench in calling for its passage. Chief Judge
David T. Lewis of the United States Court of Appeals for the 10th Circuit says :
"... I have publicly supported earlier versions of this Bill as a member of
the Judicial Conference ... but such efforts have been to no avail. . . . [T]he
Bill has merit and should be enacted . . . and my support for it is not dependent
on any personal opinion as to whether Judge Ritter is a good, bad, or indif-
ferent judge. Letter from David T. Lewis to Jake Garn, April 2, 1975, appended
to this statement as are the following four documents."
Calvin L. Rampton, Governor of the State of Utah, says :
"I feel [S. 1130] should be passed. If it were passed, in my opinion it w^ould
vp_sult in improved administration and supervision of the calendar in the United
States District Court for the District of Utah. Whether the "grandfather clause"
was ever justified from a standpoint of principle is questionable. Undoubtedly,
it was adopted as a matter of expediency to facilitate the passage of the act.
Howevtr, if it were ever justified now that there is only one Judge serving pur-
suant to the "grandfather clause", and he is a substantial number of years
beyond the cut-oft age, the continuation of the "grandfather principle" can no
longer be justified. Letter from Calvin L. Rampton to Jake Garn, May 10, 1976."
l^rwin N. Griswold. former Solicitor General of the United States, says :
"The situation with respect to the Chief Judge in the United States District
Court in Utah is unique, and, I think, unfortunate.
"The basic policy of 28 U.S.C. 136— namely, that a judge shall cease to be
Chief Judge upon reaching the age of 70 — is sound, as has been shown by a
great deal of experience in our judicial system. It is quite unwarranted, it
seems to me, to have a special provision in our statutes which makes this policy
inapplicable in a single case. The time has clearly come, in my opinion, when
that exception should be repealed, and the same rule should be applicable in
Utah as in all of the other States of the Union. Letter from Erwin N. Griswold
to Jake Garn, July 10, 1975."
The Utah State Bar has gone on record twice favoring repeal of this "grand-
father clause." On January 11, 1974, a resolution was passed at the Mid-Winter
meeting of the Bar authorizing a secret poll of the Bar membership concerning
this issue. 77.7% of those responding favored repeal. Similarly, at the Mid-
Winter meeting in January, 1976, the Utah State Bar passed a resolution by a
vote of 106 to 62 stating . . . the official action of those members of the Utah
State Bar assembled ... is aflarmed to be in favor of S. 1130.
Copies of properly signed and attested resolutions are appended.
III. S. 1130 ought to pass because its passage would not frustrate Congres-
sional policy intent as established in 1957 and 1958. We must remember that
H.R. 985 passed both the House and the Senate without the "grandfather clause"
and w^as apparently acceptable to both bodies for over a year until the bill was
reconsidered and amended for political reasons. It is true that the bill as passed
by both Houses (before reconsideration) contained a relinquishment age of
seventy-five years, but the sitting chief judge in the Federal District Court for
Utah is seventy-seven years old (having been born January 24, 1899) and would
have had to relinquish his chief judgeship nearly two and one-half years ago
even if the more liberal version of the bill had been signed. Unfortunately, that
version passed both Houses without being signed. I caution us against assuming
that S. 1130 will frustrate the intention of the 85th Congress. It will not as the
record shows.
IV. S. 1130 .should pass because the policy forecasts given by Senator Eastland
in 1958 for adoption of the "grandfather clause" have proven to be just the
opposite of what he reasonably expected them to be. In proposing adoption of
the "grandfather" amendment. Senator Eastland said :
". . . [Iln a distiict having only two judges, the administrative duties are
not such a heavy burden upon the chief judge and do not require him to spend
a substantial part of his time in pursuing duties other than judicial. For this
reason, it is deemed desirable not to change the present relationship of the
2 Relevant by analogy is the Report of the Standing Committee on Federal Judiciary
of the A.B.A. which recommends that persons not already in the Federal judicial system
not be recommended for district or appeals court judge if over the age of 64 ; a district
judge over the age of 68 who is being considered for appointment to an appeals court
"will be considered not qualified by reason of age." Proceedings of the 1970 Midyear
Meeting of the House of Delegates, p. 206.
judges in districts where there are only two judges in active service. 104 Cong.
Rec. 1525U (1958)."
The fact is, Mr. Chairman, that this expectation has not come to pass and
that the experience of two-judge district court.s has been sufficient to show that
any amendment to the 1958 bill should have specifically included two-judge
courts, not specifically exempted them. This conclusion is reached on the basis
of the experience of many, including the man who has perhaps been most
affected, A. Sherman Christensen, Senior United States District Judge who
formerly was in active service with Judge Ritter in the United States District
Court for Utah. Judge Christensen explains the dilemma of the two- judge court
as follows :
•When the grandfather clause was originally approved by the Congress,
there could have been an impression that in two-judge courts the general rule
for chief judges to step down at the age of 70 was not as important as in larger
courts. My experience and observation has demonstrated that the application
of the general rule may be more important in two-judge courts than in larger
courts where rules may be adopted by majority vote of the judges and incon-
siderate decisions with respect to supporting personnel may be controlled by
majority vote. In a two-judge court, if the judges cannot agree upon generally
applicable local rules of court, no such rules can be adopted without interven-
tion of the Judicial Council, and in the event of disagreement among the judges
in a two-judge court concerning the employment or discharge of supporting
personnel and with respect to various other decisions on which the majority of
the judges in larger courts have final say, in a two-judge court the chief judge
has unrestricted power. Letter from A. Sherman Christensen to Jake Garn,
May 11, 1976."
James L. Treece, United States Attorney for the District of Colorado, adds
a brief, but definitive, confirmation :
"I see no valid basis for distinguishing between large and small districts in
providing for the tenure of chief judges. History has .shown, in fact, that a tragic
mistake occurred when the exception was made. Letter from James L. Treece
to Jake Garn, May 11, 19'. 6."
V. Perhaps the most important reason that S. 1130 ought to pass is the failure
of Judge Ritter to maintain acceptable standards of judicial conduct. Surely
any judge who continues to serve as chief judge under the provision of a "grand-
father clause" that now applies solely to him ought to be required to maintain
at least "acceptable" standards of judicial conduct, pertaining both to his duties
as chief judge and his regular duties as a federal district court oflicer. This is
minimum standard of conduct, I believe.
The ideal would be an expectation that any judge so protected and exempted
would maintain exemplary standards of conduct. Congress can reasonably ex-
pect that when it carves out a special exemption in the law for a certain class
of persons that those persons act in a manner consistent with their special legal
status. If "exemplary" conduct is too high a standard, then it is reasonable to
require at least "acceptable" behavior.
Further, the standards of conduct can be applied to the judge's total behavior,
not just his behavior in the area in which he operates under the statutory exemp-
tion. That is, when Congress creates an exemption for certain chief judges, it
ought to maintain that exemption only so long as the exempted judges maintain
standards of "acceptable" behavior both in their capacity as chief judges and
in their capacity as active federal judges. I believe the standard of conduct as
to the chief judgeship is self-evident : if a judge is not adequately i^erformlng
his duties as chief judge he renders himself unfit to serve under a special stat-
utory exemption. This rule is based on fair play ; political exemptions may be
necessary, but they need not be maintainetl in .spite of persistent abuse. My be-
lief that even non-chief judgeship duties (i.e. non-administrative duties) are
relevant in determining whether a statutory exemption which relates solely to
the chief judgeship ought to continue is based on the belief that Congress has an
affirmative duty to end privileges and i>erquisites specially extended when
abuse occurs in an area so intertwined with the chief judgeship that performance
in one area cannot be separated from i>erformance in the other. What kind of
cockamamie rea.soning is it which argues that a special, one-man exemption
should be continued after it has been shown that the only man still serving under
the exemption abuses both his administrative and regular judicial duties? Must
we continue to reward intemperate and injudicious behavior with a special exemp-
tion? I earnestly hoi)e we do not.
Let me give one example of the problems we have with the administration ot
tlie Utah Court. In 1957, a formal request to divide the business of the U.S. Dis-
trict Court lor Utah was submitted to the Judicial Council. The request came
from disputing judges Kitter and former active (now senior) district judge,
A. Sherman Christensen. On January 20, 1958, the Council issued an order setting
out the manner in which cases in the Utah Court would be divided. For example,
civil cases were to be assigned in the following manner : the clerk of the court
was to take between lifty and one-huudred cards and write "chief judge" on half
and "associate judge" on half. The cards were then to be shuffled and placed in
opaque envelopes and the envelopes were to be numbered so as to correspond
with the next fifty to one-hundred cases to be filed. This was to be done in such
a manner as "no one shall know the designation appearing on such card."' There-
after, as each case was filed, the clerk would take an envelope from the place
where they had been safely kept and assign the case to the judge whose name
appeared on the card in the envelope. In re Division of Business and Assignment
of Cases in the U.S. District Court for the District of Utah, Order of the Judicial
Council of the 10th Cir., Jan. 20, 1958.
This order was amended in 1962 by agreement of the district judges and in
1965 by another order of the Judicial Council.
On August 17, 19.1, Judge Christensen retired from active service and was suc-
ceeded by Aldon J. Anderson who was duly qualified the same day, therefore "no
vacancy occurred in the position." By unilateral action, Judge Ritter on October 4,
and November 24, 1971, issued orders transferring to himself certain cases pre-
viously assigned to Judge Christensen and i>ending in Judge Christensen's court
the day he assumed senior status. By order of December 20, 1971, the Judicial
Council of the Tenth Circuit reversed Judge Ritter's unilateral action after de-
termining that Ritter, Christensen, and Anderson had "i-esponded in writing . . .
[and indicated] that a controversy does presently exist, and has existed, as to the
division of business and the assignment of cases in [their court]."
The Judicial Council further ordered and decreed :
"1. The former order of the Council, as amended, remained in full force and
effect and was not "in anywise affected' by Judge Christensen's retirement ;
"2. Judge Anderson was to succeed to all of Judge Christensen's pending
cases ;
"3. Judge Ritter was ordered to vacate his unilateral orders 'purporting to
assign to himself certain cases. . . . ;'
"4. Judge Ritter was ordered to vacate 'each and every other order that he
has unilaterally entered' affecting Judge Anderson's cases unless Judge Anderson
'specifically consents and agrees' to any such order. In re Division of Business
and As.signment of Cases in the I'.S. District Court for the District of Utah,
Order of the Judicial Council of the 10th Cir., December 20, 1971."
In a case with parallel issues growing out of the same facts, Utah-Idaho Sugar
Company brought a mandamus action in the Court of Appeals to require Judge
Ritter to reassign petitioner's case which he (Ritter) had taken through his
order of October 4 although the case had originally been assigned to Judge
Christensen. In granting the petition, the Court summed up many years of ex-
perience in the United States District Court for Utah :
"* * * It was therefore entirely proper for the Judicial Council to declare
Chief Judge Ritter's order void. . . . His act of choosing which cases to keep and
which to assign to Judse Anderson did not comply with the Council's mandate
that the assignment of civil cases be equal and random. ... In sum then the
Judicial Council was justified, first, by reason of the fact that Chief Judge
Ritter acted unilaterally and not in conjunction with Judge Anderson, and,
secondly, because there was continued disagreement between the judges of the
district. We find and conclude that this writ of mandamus is essential to con-
tinuation of fair division of ca.s^es within the District of Utah and in implemen-
tation of the prior orders of the Judicial Council. Utah-Idaho Sugar Co. v. Ritter,
461 F. 2d 1101, 1104 (10th Cir. 1972)."
Let me turn now to a criticism of Judge Ritter that does not directly concern
his administrative work, but does seriously concern his general judicial role,
and therefore the justification for his continued protection under the "grand-
father clause."
8
This criticism concerns Judge Ritter's restrictive grand jury policies that
continually hamper the administration of federal law in Utah.
'•. . . LI]u the past five years, a grand jury has met in Utah's central district
only SI days. During 1972, grand juries sat only on day, during 1973 not at all.
"That record is in sharp contrast to neighboring jurisdictions. In Arizona, two
grand juries are always impaneled, and sometimes there are as many as four.
In Colorado, a grand jury is always impaneled, and a second one has been called
if needed for spercial investigations.
"Spokesmen for the offices of the U.S. attorneys in those states said they had
never heard of their grand juries being limited to specified ca>:es [as Judge Ritter
did with the 1975 Utah grand jury]. Nor, so far as they knew, had federal judges
in their states arbitrarily dismissed grand juries before their term was up [as
Judge Ritter did]. Decker, 'Ritter Blocks Juries,' Deseret News, December 10,
1975." ^
The Decker article was written shortly after Judge Ritter dismissed a grand
jury that was investigating what one juror called "a very large, involved case."
On December 4, l97o, the day the grand jury was dismissed, the following
dialogue took place after the Judge had dismissed the jury :
"The Foreman. Could I take a moment of your time, please?
"The CotjBT. Sure.
"The FoKEMAS. The Grand Jury would like to thank you for the opportunity
that we have had of serving as federal grand jurors in representing the people
of the United States of America ; but we are deeply concerned, and we have been
for some time about the fact of unfinished business.
"We haven't felt it a hardship, you know, to meet and to act in this capacity ;
and we would like to at this time, with your permission, to complete tne in-
vestigations that we still haven't completed.
"The Court. Well, I tnink I'm acquainted with that, and I've already alluded
to it. So we will do as I say. You're discharged. Go to the Clerk's Office."
Report of the Grand Jury, United States District Court for for the District
of Utah, December 4, 1975, at 26-7.
According to news accounts, the Grand Jury was not aware of a.i\y deadline
and was surprised by the dismissal. The foreman of the Jury was quoted as
saying, "We didn't know of any deadline. The jurors were unaware of any dead-
line." "Grand Jurors Miffed at Ritter's Ruling," Deseret News, December 5, 1975.
Another grand juror estimated that it would take "roughly three months" to
present the case to another grand jury.
The U.S. Attorney pursued appropriate and timely remedies without success.
On December 4, 19 1 5, ne filed a request that the Grand Jury impaneled on
February 10, 1975 (and dismissed on December 4, 1975) be permitted to continue
to sit. The request was ignored. On January 23, 19(6, the U.S. Attorney filed a
motion for impaneling a grand jury. Again, Mr. Child was ignored. On April 20,
1976, the U.S. Attorney filed a Petition for Writ of Mandamus with the United
States Court of Appeals for the Tenth Circuit, requesting that court to issue an
order compelling the convening of a grand jury and to order certain protections.
Mr. Child was joined in the petition by Richard L. Thoriiburgh, Assistant At-
torney General, Criminal Division, and Mr. Thomas E. Kauper, Assistant
Attorney General, Antitrust Division. On April 23, Judge Ritter signed orders
calling members for a new grand jury, therefore mooting one of the points of the
Petition for a Writ of Mandamus. Tlie circuit court maintained jurisdiction over
other requests of the petition, including that the Grand Jury be allowed to sit for
its full term unless both the U.S. Attorney and the foreman agree to an earlier
dismissal ; that the Grand Jury be permitted to investigate any matter it deems
proper ; and that the Court be required to sign and enforce all immunity orders
obtained in accordance with law. Petition for Writ of Mandamus, United State»
V. Ritter, (10th Cir. April 20, 1976).
Mr. Chairman, time and space do not permit further discussion of these
problems or other problems that trouble our district court, but these two areas of
concern — assignment of cases and grand jury impaneling — will give the Com-
mittee an idea of the obstacles facing those of us who seek a better brand of
justice in the United States courts in Utah. Appendix I of this statement includes
three articles from a recent issue of Utah Holiday Magazine that detail some of
the Judge's problems with the press, the Bar, the Court of Appeals, and others.
^ See also. Affidavit of Lois Groesbeck. administrative clerk and custodian of the grand
jury minute book, wliieh shows only 57 days of grand jury work since March of 1971.
United States v. Willis W. Ritter, Appendix to Petition for Writ of Mandamus, p. 1
(10th Cir. Apr. 20, 1976).
9
VI. Finally. S. 1130 onglxt to pass because the facade of detached impartiality
and judicial" sufficiency has crumbled from Willis W. Ritter. Utabans no longer
uudei-stand— ii indeed they ever did— why this man continues to receive special
and tmiqiic protection from the simple rules that apply to everyone else. We
yearn for an equal treatment, and it ought to start with judicial fairness.
Let me share with you part of the parade of items that fill my tiles. I will take
just one item from each month in 1976.
On Januarv IS. 1976, the Ogden, Utah Standard-Examiner editorialized "Time
Has Come for Fvderal Judge Willis W. Ritter to Step Down." On the 27th of that
month the same paper carried a letter from Val "J"' Hallstrom of Sandy, Utah
which concurred with the editorial. Mr. Hallstrom said :
"* * * I had the displeasure of observing Judge Ritter ... a few months ago
and still can't believe what I saw and heard in his court. Before I spent time as an
onlooker in hi> court I believed in only one God, now I believe there [are] two.
••***! wonder how many individuals who have appeared before Judge Ritter
and their loved ones feel about having faith in the judiciary system [?] * * * You
say have faith in the judiciary system. Mister, he is the system."
Letter from Val J. Hallstrom, Ogden Standard-Examiner, Jan. 27, 1976.
In February 1976, I received a letter from a constituent who complained of
the treatment his father had received before Judge Ritter. Names, dates, and other
identifying information in this letter and the following two letters will not be
revealed because I do not have the writers' permission to do so and because I am
afraid that disclosure will work to their prejudice. The letters for February,
March, and April follow :
"If you think he [Judge Ritter] has abused defense attorneys before, get and
read the transcript of [case name omitted]. Ritter has put my father, [name
omitted] in the hospital with a near massive heart attack. If you can get ahold of
that transcript (good luck, because we couldn't) you might even have your
evidence for a full-scale impeachment. It was so bad in court on [days and dates
omitted] that we even suspect Judge Ritter of ordering the transcript destroyed.
The reporter would give no reason, but he said he could not make a copy of the
transcript for us."
The March entry in this parade is from a California attorney :
"It was shocking to me the evidence which was kept from the trial and the
various rulings which the judge made which I felt were inconsistent, not only
with morality, but sound principles of law.
"His submission to the jury was probably the most inflammatory piece of
judicial work that one could imagine and, although this matter is in the Appellate
Courts at the present time. I wish to compliment you for your attempt to bring
about a much more equitable judicial system under which citizens may litigate
their various issues and disagreements at law.
"This case is probably the most flagrant abuse of judicial discretion which
we have been apprised on in the last 15 years."
The March entry comes from a Utah attorney :
"I recently completed a trial before a jury in Judge Ritter's court. The
tyranny that takes place withm those walls cannot be felt by or described to
others who do not witness it. When a description is attempted the listener simply
shakes his head in disbelief. The abuse of Utah citizens who are called as jurors
is painful to observe. Litigants who have the misfortune to find themselves in
his court are battered from side to side at the judge's irrational whim. Witnesses
are ridiculed and dimissed, hardened criminals are allowed to go free because
of an expressed hatred the judge has for the United States Attorney. The list can
go on and on."
The examples for May are contaiend in Appendix II.
Let me conclude with the conclusion of another : Joseph C. Goulden, author of
a recent book on federal judges. After discussing Judge Ritter for several pages,
Mr. Goulden says :
"At one point I had decided that Judge Willis Ritter, the perpetual-fury ma-
chine of Salt Lake City, deserved the honor [of ultimate Expletive Deleted
judge of the federal courts]. Ritter's bad temper, however, seems to be fired by age
and whiskey more than by innate meanness and, as is true of any ricocheting
object, he occasionally lands on the right side of an issue."
J. Goulden, The Ben clue armers, p. 378 (Ballantine Books: 1974). Judge Ritter
had to settle for second ; first place went to a Los Angeles judge.
These kind* of points are made over and over in letters, in newspapers, and now
in books. It's time we no longer reward such behavior with special "grandfather"
protection. This is the very least that can be expected of a government of laws.
10
Mr. Chairman, whui more can be said? Who else needs to speak? What further
actions need to be taken? How much more time needs to pass? "The condition in
the State of Utah has been a scandal among the Bar in Utah and Idaho and the
Western States for many years." * Let's take the time now to correct it.
Thank you.
* Letter from Marion J. Callister, United States Attorney for the District of Idalio,
to Jake Gam, May 12, 1976.
FEBRUARY W. 1976
VOLUME V NUMBER 5
A DISCERNING GUIDE TO THE STATE
Tne Af.s ■ C■^,■^■■".^^'fr ■ D" '^g ■ Med. a ■ People ■ Politics ■ Spons ■ Tt^vel
RITTER
Paranoia & Paradox
on the Federal Bench
Ski ioiirin^:
IhatOldWhiteMaiiii 'g-
Breakfast in Bed:
UH Re>ic\vs Hospital I ikhI
Pabanoia and Paradox on the Federal Bench
"Chief Judge Willis W. Ritter has established a reputation as one
of the most cantankerous and frequently overturned jurists in American
jurisprudence."
(By M. Dallas Burnett and Nelson Wadsworth)
At first glance, the short, rotund man with silvery white hair appears Jovial
and kindhearted. Dress him in a red, fur-lined suit and a beard and he could
easily pass for Santa Claus ... but not for long.
11
As he sits in his courtroom in the Post Olfice Building in Salt Lake City,
glowering down at a steady parade of lawyers, defendants, witnesses and law
enforcement officers, his demeanor quickly dispels the notion and image of a
good-humored government St. Nick.
In 25 years on the Federal bench, Chief Judge Willis W. Ritter has established
a widespread reputation as one of the most eantanKerous ana frequently over-
turned jurists in the history of American jurisprudence.
One California lawyer, his legal pride recently trampled underfoot in Ritter' s
courtroom, put it this way : "That Federal judge in Salt Lake City has got to be
the meanest s.o.b. east of the Pacific Ocean . . ."
On the other hand, a handful of respected Utah lawyers — most of them Rit-
ter's friends — call him "one of the most brilliant legal minds on the Federal
bench." They claim the judge's irrascible image was created by a hostile press
in retaliation for the bullying reporters and photographers receive in his court.
The press' view of Judge Ritter has resulted in the coining of a new word in
Utah legal circles, "Ritterisms." These are the legions of stories, incidents and
timely little anecdotes that surromid the legendary life of the 76-year-old jurist,
making him one of the most controversial judges in the Federal judicial system.
"Ritterisms" would fill volumes, but here are a few examples :
Once in 1952, the judge had the U.S. Marshal haul the postmaster and scores
of postal employees before the bench, threatening to hold them in contempt if
they failed to silence some noisy mail elevators that "sounded like a bowling
alley and disturbed the peace of the court."
Another time he banned cameras and tape recorders from the entire Federal
building to "protect the rights of defendants and witnesses who did not want
to be photographed or interviewed."
In 1969 he consolidated 69 habeas-corpus and civil rights cases filed by inmates
at Utah State Prison. The order turned the second floor of the Post Office build-
ing into an armed camp as the heavily-guarded convicts were brought into the
courtroom en masse.
In another case. Judge Ritter ordered a divestiture plan in the far-reaching
El Paso Natural Gas-Pacific Northwest Pipeline antitrust action which was
rejected by the U.S. Supreme Court. In handing down the decision, the high court
ordered the federal judge in Utah to remove himself from the case because of
prejudice, an almost imheard of procedure in Supreme Court opinions.
Once in 1973 the judge issued a 10-day restraining order prohibiting police
from issuing parking tickets in downtown Salt Lake City. Although the order
was later overturned by the 10th Circuit Court of Appeals, it created temporary
traffic chaos in the heart of the Utah capital city.
And just two months ago. Judge Ritter dismissed a Federal Grand Jury right
in the middle of what jurors called "a most important criminal investigation."
He abruptly called the panel into his courtroom and without explanation ordered
it to go home.
Ritter's ban on photographers and artists in his courtroom deserves further
comment because it illustrates his treatment of newsmen. The gap between the
judge and the press culminated in the celebrated "TV sketching case" in 1973.
Salt Lake City media, true to form, fearfully sidestepped any confrontation
with the judge.
The story unfolded just three years ago this month when a Salt Lake City
television station broadcast sketches of a trial underway in Judge Ritter's court,
apparently in violation of a 1969 order prohibiting drawings. A few days later
station management and certain news personnel found themselves facing a con-
tempt citation.
During the contempt hearing, it was discovered the sketches had not been
drawn in the courtroom. They were done from memory after the artist had
visited the court. The judge conceded that the television news people may no_t
have totally understood his order about courtroom sketching, so the contempt
citation was not pressed. But the sketching order was promptly amended so
no one else could misunderstand its intent.
12
The new order, issued Feb. 2, 1973, talked about a ban on drawings, "whether
the cartoons, artists' sketches, caricatures, or whatever they may be called, are
made on these premises or elsewhere."
That order gave the Utah Federal District Court the distinction of being the
only one in the United States where sketching from memory is prohibited. Only
the state courts of Rhode Island also prohibit in-court sketching.
The only other Federal court issuing an order similar to Judge Ritter's was
in Florida, also in 1973. That judge was told by the Fifth Circuit Court of
Appeals, however, that the rule was inappropriate and that "persons are per-
mitted to unobtrusively make sketches within the Courtroom during public
sessions ... or to sketch from memory and thereafter publish, or both."
Unfortunately, the Utah rule was not challenged so there has been no oppor-
timity for a higher court to rule on its constitutionality. There is little doubt
that it would not stand up under a legal challenge.
The neglect of the newspapers and uroadcusier-s in Salt Lake City in this mat-
ter may be just as serious as the judge's order. The late Supreme Court Justice
Hugo L. Black probably put his finger on this sort of media attitude in a 1967
case comment : "If there is any one thing that could strongly indicate that the
Founders were wrong in reposing so much trust in a free press, I would suggest
that it would be for the press itself not to wake up to the grave danger of its
freedom."
The First Amendment to the United States Constitution, along with the
Fourteenth Amendment, prevent the federal government and the states from
restraining publication or otherwise interfering with the rights of free expres-
sion. Those rights, of course, are not absolute, and there are some areas of ex-
pression like sedition, obscenity and libel that may be punished after the fact.
But preventing publication in advance has always been unacceptable to the
U.S. Supreme Court except in a few rare instances.
The Ritter order, it should be remembered, is a prohibition against reporting.
In other words, the judge not only says what can take place in his courtroom,
but he is dictating, at least in a narrow area, what may be reported.
Several illustraaons may serve to put the sketching ban in perspective against
the backdrop of First Amendment guarantees.
In a 1972 case in Baton Rouge, La., a federal district judge said there could
be no report carried by newspaper, radio, or televi.-ion of the testimony of a
specific day. That order was struck down by the Fifth Circuit Court of Appeals
in rather forthright language : "... a blanket ban on publication of Court pro-
ceedings so far transgresses First Amendment freedoms that any such absolute
proscription 'cannot withstand the mildest breeze emanating from the Constitu-
tion' . . . Censorh^hip in any form — judicial censorship included — is simply in-
compatible with the dictates of the constitution and the concept of a free press."
Judge Ritter made an interesting and humanitarian argument for his sketch-
ing ban. He suggested that people have a right to come to the court "without
being held up to degradation by grotesque representations of their physical
characteristics . . . and a constitutional right ... to be free from being made a
public display of."
His concern for the privacy and welfare of those who do business in his court
may be ethically laudable, but it hardly stands as a legal right. There are neither
statutes nor case law that grant a "constitutional right" to be free of publicity
when you go before the federal courts. Even if one accepts the presumption that
all courtroom drawings are "grotesque representations" and subject a person
to "ridicule," the laws of privacy and libel, as interpreted by the Supreme Court,
prevent recovery unless it can be shown that the statements or pictures are made
with actual malice.
The most telling argument against this order forbidding an artist from leav-
ing the counroom, drawing the scene from memory and then having that sketch
televised is the First Amendment itself.
"A trial is a public evenc," according to Justice William O. Douglas in a 1946
case. "What transpires in the courtroom is public property . . . Those who
see and hear what transpires can report it with impunity. There is no special
perquisite of the judiciary which enables it, as distinguished from other in-
stitutions of democratic government to suppress, edit, or censor events which
transpire in proceedings before it."
Since the person who draws in a courtroom can do so, if he desires, with httle
more distraction to tne participants than the person who takes pencil notes, it
is unnecessary that the physical act of drawing interfere with the proceedings.
The drawing Is simply another technique for reporting court activities.
13
In striking down the federal government s attempt to censor the Pentagon
Papers in 19(1, the Supreme Court said tliat a prior restraint on expression
carries a "heavy presumption against its constitutional validity." The weight
of the presumption is established by the rarity of cases sustaining any activity
that could be considered prior restraint.
Judges can impose prior restraints that are constitutional only in extreme and
limited circumstances. Ihe circuit court that knocked down the sketching order
in Florida said, "Before a prior restraint may be imposed by a judge, even
in the interest of assuring a fair trial, there must be an 'imminent, not merely
a likely, threat to tiie administration of justice. The danger must not be remote
or even probable ; it must immediately imperil.' "
It is obvious that the gag order on sketches was not designed to protect from
some terrible danger to the administration of justice. It was directed at getting
privacy for the people coming to the courts and keeping the media out of the
province that the judge considered exclusively his.
That hardly justifies the prior restraint.
In contrast to the Utah media's example, one eastern newsman boldly delved
into Judge Ritter's alleged "ecumenical meanness." Investigative reporter Joseph
Golden, formerly with the Philadelphia Inquirer and now a free-lance writer in
Washington, D.C., recently wrote a book entitled The Benchicarmers, in which
he explored the temperaments of the country's Federal judges, including Judge
Ritter. In one chapter, Golden wondered if any of the jurists he had been
writing about would qualify for the title of "ultimate Expletive Deleted judge
of the Federal courts?"
"At one point I had decided that Judge Willis Ritter, the perpetual-fury
machine of Salt Lake City, deserved the honor," Golden wrote. "Ritter's bad
temper, however, seems to be fired by age and whiskey more than by innate
meanness and, as is true of any ricocheting object, he occasionally lands on the
i-ight side of an issue. Let me say that again : Ritter sometimes makes a humani-
tarian decision, but maybe only because he is madder at the bad guys in the
case than he is at the good guys."
And so Golden passed over Judge Ritter for the dubious "ultimate Expletive
Deleted" title and gave it instead to Judge Charles Carr of Los Angeles.
For many people in Utah, however. Judge Ritter has been in the process of
earning such a title ever since a series of heated Senate hearings in 1949 and
1950 ended in confirmation of his appointment by President Truman. Emotions
about the judge's courtroom conduct have simmered behind the scenes for years
in the law offices in Salt Lake City, but it \^asn t until 1973 that the Utah State
Bar would publicly acknowledge there might be a problem. In that year, at the
association's annual meeting in Provo, the public debate over Ritter's alleged
"irregular conduct'' and supposed "bias'' against certain lawyers began.
Calvin Behle, a well-known lawyer in Salt Lake City and then Utah delegate
to the House of Delegates of the American Bar Association, introduced a resolu-
tion to ask Congress to repeal the "grandfather clause" in the Judiciary Retire-
ment Act of 1958. This clause had initially been tacked onto the Act as an
amendment in the Senate, allowing Idaho Democratic Senator Frank Church's
father-in-law to continue to serve as chief judge after retirement age. Under the
act, federal judges must retire from chief judge status at age TO, except then
incumbent chief judges in two-judge districts. Currently, Judge Ritter is the
only one left on the bench. If the clause is repealed, he would remain as a Federal
judge, but would have to relinquish his administrative powers, including the
power to assign cases.
Behle's resolution was adopted by a 2-to-l margin. But only about lOO of the
Utah Bar's 1,383 members were at the convention. Some pro-Ritter lawyers w^ere
enraged by the move.
"The entire business was carried out in a most shoddy and Illegal manner,"
declared John J. Flynn, University of Utah law professor. "Such a procedure
would do credit to those who planned Watergate and is just as unfair, illegal,
and unethical." He also called it a "sneaky, underhanded attack on the inde-
pendence of a Federal judge."
The association's Board of Commissioners finally determined the resolution
had been "improperly introduced" and declared the action in Provo to be "null
and void."
"They left me holding the bag," Behle said, shaking his head. "They are
afraid because they have to plead cases before Judge Ritter."
14
But the Behle resolution didn't die. In secret, statewide balloting authorized
at the association s mid-winter meeting a few months later, 815 of the 1,049
lawyers who responded said they favored repeal of the grandfather clause. The
Board of Commissioners voted to send copies of the resolution to Utah's con-
gressional delegation.
Then Rep. Wayne B. Owens, a Democrat serving on the House Judiciary
Committee, received the resolution but did nothing. "I'm not going to get caught
in the Utah Bar's popularity contest for a Federal judge," Owens said shortly
before running on the Democratic ticket for the Senate seat vacated by Republi-
can Wallace F. Bennett. His GOP opponent in that campaign was then Salt
Lake City Mayor E. J. "Jake" Garn, an outspoken critic of Ritter.
Shortly before the election, Garn lashed out at the judge's reversal rate in
cases appealed to the 10th Circuit Court. "When a Federal judge is overruled
80 per cent of the time," Garn declared, "... then it is obvious he is not
doing his job. Judge Ritter has also displayed an obvious, strong bias against
Salt Lake City in cases that have appealed ueiore hini. We leel we cannot get
a fair hearing in his court."
Garn went on to defeat Owens in the 1974 election. Just what effect the
Ritter issue had on the outcome is not known, but it may have hurt the Demo-
crat's campaign. At any rate, the Republican senator is now in Washington,
pushing for repeal of the grandfather clause.
Garn's estimate of appeals court reversals was based only on a survey of the
habeas-corpus cases appealed irom Ltaa. Of 39 cases, 'do were overturned on
appeal. Nevertheless, Judge Ritter's overall batting average in the higher courts
is a little better.
Deputy Attorney General Robert B. Hansen, another outspoken Ritter critic
who is writing a book about the Federal judiciary, claims more than 60 percent
of the judge's civil ca.ses eilher in whole or in part have been reversed by the
10th Circuit Court since 1949. In 284 cases, Hansen said, only 111 have been
affirmed.
Hansen's analysis, prepared with the help of retired lawyer Randoph Collins,
also showed 43 percent, or 22 out of 51 criminal cases reversed.
Professor Flynn said Ritter had a poor i-ecord in what he called "the con-
servative" Court of Appeals in Denver but had a "fair" record in the Supreme
Court. "I don't agree with all his decisions," Flynn said, "but dammit, he makes
them, and some pretty tough ones at that. . ."
Despite Flynn's claim, Judge Ritter's record in the U.S. Supreme Court is
apparently not impressive either. In at least two cases, the high court instructed
him to step aside because of obvious bias and prejudice. In the El Paso Natural
Gas antitrust case, Ritter announced from the bench that the government had
lost and instructed company lawyers to prepare findings of fact and conclusions
of law, which he later signed without change.
"We would have to wear blinders," said Justice William O. Douglas after
the subsequent appeal, not to see the illegality of the merger. The Supreme
Court then ordered an immediate divestiture of Pacific Northwest Pipeline
by El Paso. Later, even with the high court's mandate. Judge Ritter permitted
the company to file its own divestiture plan which still reeked of the old
monopoly.
Finally, in an unprecedented move, the Supreme Court rejected Ritter's
divestiture plan and ordered him removed from the case implying the trial
judge's "personal and emotional involvement."
A similar fate awaited the so-called "Indian pony case" in which an im-
poverished group of Navajos claimed the Bureau of Land Management had
rounded up their herds of horses and burros in southeastern Utah and drove
them from the range, killing many in the process. The Indians sued the govern-
ment for $100,000. Following a complicated back and forth exchange with the
10th Circuit Court, and finally an affirmation of Ritter's ruling in the Supreme
Court, the case was remanded to Utah to fix damages. Ritter ended up awarding
the Indians more than $186,000, nearly double what they had asked in the
original complaint.
The government once more appealed, and after much wrangling back and
forth, the circuit court and the Supreme Court instructed Ritter to remove
himself from the case. In its ruling, the circuit court pointed out Ritter"s
emotional involvement and failure to give calm, impartial consideration to the
defendants.
16
Some attorneys in Salt Lake City claim there is a certain group of "fair-
haired" lawyers, most of them liberal Democrats, who win every case in Ritter s
court. But even some Democrats say they "do not get a fair shake."
"Judge Ritter doesn't stand for any monkey business,"' says A. Wally Saudack,
a Democrat and friend of the judge. "If you go into his court unprepared, or
if vou trv to gas around a lot and act unprofessional, you are in serious trouble.
'•If they reallv want to go after Judge Ritter," adds Professor Flynn, then
they should impeach him, as specified by law. But they know damn well there
are no grounds for impeachment."
One group did try to have Ritter impeached in 1973, and petitions were
actually circulated in Utah. The movement, however, had an extreme right
wing tinge to it, and was led by disgruntled plaintiffs and defendants who had
suffered defeat in Ritter's court. Their claim that the judge had accepted a
$20,000 bribe from a defendant in a felony case was outlined in a "friend of
the court" petition filed in the clerk's office, but the U.S. attorney said the
accusations were groundless and the public gave the charge little credance.
Thus, the impeachment petition fizzled.
Ritter's brush with impeachment is perhaps miniscule compared to his diffi-
culty with Federal Grand Juries. In 1970-71 he was accused of "manipulating"
a grand jury called to investigate the Salt Lake County Jail. The late U.S.
Attorney C. Nelson Day, shortly before he was killed in a traffic accident last
year, told a group of journalism students from Brigham Young University that
the judge had hand-picked the jurors, including foreman Maurice Warshaw,
contrary to federal law specified for impaneling grand juries.
"When it came time for charges," Day said, "the jury really didn't have
anything to go on, but it wanted to return indictments anyway. I refused to sign
them, with the backing of the Justice Department. The next thing I knew, Judge
Ritter was releasing them to the press."
Another grand jury debacle splashed into the headlines only two months ago
when Ritter abruptly dismissed the last term jurors right in the middle of an
investigation. Mrs. Tyko (Marjorie) Kangas, who said she was speaking for
the resl: of the jurors, decried the judge's action as a horrendous waste of tax-
payer's money and a grave handicap to federal law enforcement in Utah.
"When I walked out of that courtroom I wanted to cry," she declared. "I
wondered, 'is this really America?' It seemed to me more like a dictatorship,
where the people have no where to turn."
Mrs. Kangas fired off a scathing letter to U.S. Senator Frank E. Moss CD-
Utah) who in the past has remained silent on the Ritter matter. The former
juror, a registered Democrat, promised to campaign against Moss in the
upcoming election if he failed to support repeal of the grandfather clause.
Moss, somewhat reluctantly, admitted recently, he thought the time had come
for Ritter to step down as chief judge.
During World War II, Ritter was appointed regional director of the Office
of Price Administration in Denver, supervising rent controls in Colorado,
Montana, W^yoming, Idaho, Utah and New Mexico. In the Senate hearings on
his appointment to the bench, one of his colleagues in the OPA, H. Grant Ivins,
a former district director, wrote a fiery letter to the subcommittee declaring
Ritter an "unfit candidate" for the judgeship. Ivins called Ritter "arbitrary,
tyrannical, and arrogant." He said he had talked to many prominent Utah
lawyers about the matter and "I have yet to find one who does not say that
such an appointment would be little short of a calamity."
Yet the Utah State Bar and Salt Lake County and Weber County Bar Asso-
ciations endorsed Ritter, and it was their support that enabled Rep. Walter
Granger and outgoing Sen. Elbert D. Thomas — who had made the nomination
in the first place — to clinch the confirmation.
Repeated attempts to interview the judge usually end in failure. He gen-
erally refuses to talk to new-smen. Following the Utah State Bar's poll in
1974, he did grant a rare, brief interview to a Salt Lake City television station.
At that time he said he didn't "care two bits" about the Bar's move to take
away his chief judge status. "This is a fumbling, bumbling political tactic by
a poor chap who is trying to make a political name for himself and has no other
issue," Judge Ritter declared. He said Deputy Attorney General Hansen — then
a candidate for the Republican nomination for Congress — "Conceived and pro-
moted" the poll among Utah lawyers.
16
At Zion'a Book Store a block from the Post Office, owner Sam Weller says
Ritter is one of h's best customers. "He is a man greatly misunderstood by the
public," Weller adds.
"He is what a Federal Judge ought to be," says another lawyer friend, "an
advocate of the law who cannot be blown to and fro by every special interest."
LIST OF ALL CIVIL CASFS PUBLISHED IN FEDERAL REPORTER FOR THE lOTH CIRCUIT COURT
OF APPEALS IN 1975 WHICH WERE TRIED BY CHIEF JUSTICE WILLIS W. RITTER
R.S.C.
lop No. N?me Citation Disposition
189 AmeriMn Oil Co. v. McMiillln 508 F. 2d 1345 Reversed in part.
Affirmed in part.
190 Muller V. U.S. Steel Corp 509 F. 2d 923 Do.
191 Shuput V. Heublem, Inc 511 F. 2d 1)04 Reversed.
192 LittleReflHnusev.Oualitv Ford Sales, Inc. 511 F. 2d 210 Reversed in part.
Affirmed in part.
194 Slauggterv. Brigham Young University... 514 F. 2d 622 Reversed.
195 G. M. Leasing Corn. v. United States 514 F. 2d 935 Reversed in part.
Affirmed in part.
196 Redd V. Shell Oil Co 518 F. 2d 311.. Reversed.
197 United States V. Browning.. 518 F. 2d 714 Do.
1S8 United States V. Hansen Niedertiauser Co 522 F. 2d 1037 Do.
199 Little Red House v. Oualitv Ford Sales, Inc. 523 F. 2d 1 Do.
17
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18
Judge Ritter : The Man & The Myth
"You're dealing with an enigma, there's no doubt about it," con-
cedes a friend. "How can he be both compassionate and rude? He's
human and 76."
(by Blaine Jarvik)
The man will not sit for his portrait. And so the artist goes to the man's
family and asks: "What about his eyes? Are they brown or blue?" "No com-
ment," says the family. "Why open old wounds?"
And what about tne shape of the face? The artist asks the man's friends.
"Ah," they say. "The shape of the face. Too private a matter." The artist goes
to the man's colleagues. What about the smile? "No smile at all," say some of the
colleagues with assurance. "A very big smile," insist the others.
And so the artist does the portrait : One blue eye and one brown ; a face that is
at once oval and square ; a smile that begins as a grin and ends in a sneer.
Judge Willis Ritter did not authorize this "biography," as he would call it.
And, to no one's surprise, he refused to be interviewed. But he did relay this
message through his daughter : "If you and your editors continue to pursue
this matter, you will have to accept the risks and consequences, whatever they
may be." In accordance with his wishes, other members of his family have also
declined interviews.
What do we know, then about Willis William Ritter, Chief Judge of the U.S.
District Court of Utah? That he has lunch very regularly at Lamb's Grill, and
also frequently enjoys a Chinese meal. That perhaps his favorite song is Nat
King Cole's Mona Lisa. That he has watched tiie entire Ascent of Man television
series more than once. That he is a very private public man.
It appears certain that this man was born on Jan. 24, 1899 in Salt Lake City,
and that soon afterwards his parents moved to what is presently called "The
Homestead" in Midway, Utah, but was then called "Ritter's Hot Pots." When
he was still a young boy, he moved with his family (eventually to number four
children) to Park City, where his father mined, went on strike, and often had
to feed his family on credit.
Young Willis did well in high school, was a private in the U.S. Army during
World War I, and worked in the mines for one or two years when he was
about 20. And sometime either between those occasions or afterwards, he nearly
died of the flu. It was while recuperating, he once told a Deseret News reporter
in one of his rare interviews, that he began reading a law book that was lying
around the house. With money earned in the mines, he helped pay his way
to law school at the University of Chicago, where he graduated with a LLD in
1924.
In those days it was possible to be admitted to law school directly from high
school, and it wasn't until 13 years later, after he had already been teaching for
many years as a professor at the University of Utah College of Law, that
Ritter went back and got his bachelor's degree from the U. He made Phi Beta
Kappa. In 1940 he received a SJD degree from Harvard Law School.
According to Who's Who, Ritter practiced law in (liicago, Washington and
Salt Lake City for a total of 16 years, some of those while he was also teaching
and getting his bachelor's degree. During World War II he served as regional
director of the Office of Price Administration in Denver. In 1948 he was nomi-
nated for Congress from the Second District (Salt Lake and Tooele Counties)
by Democrats. In January, 19.'50, he was appointed by Democrat Pre.sident
Harry Truman to become Utah's federal judge, after serving an interim term,
an appointment bitterly contested by many Republicans, some lawyers, and
some members of the LDS Church (some of these fearing he would not rule
to their liking). He became chief judge in 1956.
He has four children, two of whom live in Salt Lake. He has a farm in Idaho,
is separated from his wife and lives alone in the Newhouse Hotel.
"You're dealing with an enigma, there's no question about it," concedes one
lawyer who greatly admires the judge and has enjoyed a long personal rela-
tionship with him.
And perhaps the biggest enigmas are these : That a man whom even his
detractors agree is "brilliant" can at times be vindictive and petty. And that a
man whf)m even his critics agree has an overwhelming compassion for "the
little guy," can at times be so intolerant of. and rude to. individuals.
"How can he be both compassionate and rude?" asks the lawyer friend.
"You're back to the fact that he's human . . . and 76." Ritter will turn 77 while
this issue of Utah Holiday is on the newsstands. Only his very severest critics
19
feel that his intelligence has begun to show the effects of that age. (Ironically,
the man he succeeded, Judge Tillman Johnson, didn't retire until age 91.)
Kitter is an intellectual as well as an intelligent man. He appears to have
few hobbies other than reading — but his reading interests are wide: history,
politics, philosophy, biography, current events. He has a passion for Thomas
Jefferson. He loves to philosophize, is an entertaining conversationalist, enjoys
a good laugh. He is a collector of art— a legacy of a favorite uncle, Utah artist
Willis Adams — and has recently donated a total of 111 Navajo blankets and
rugs to the U of U Museum of Fine Arts.
Many people consider him one of the brightest professors ever to have taught
at the U law school. He may also have been one of the most arrogant and
demanding (in a profession that has traditionally cultivated both), a man
whose own capacity for detail and insight has made him intolerant of those
who are less endowed. "He doesn't suffer fools gladly," notes one colleague.
When he became judge, after 25 years as a professor, he took this style
with him.
"I've seen lawyers come out of his courtroom crying — and some who have
literally thrown up," recalls one Salt Lake lawyer, who, like many other
lawyers questioned, preferred to remain anonymous for fear of receiving court-
room reprisals from the judge.
He has been known to tell attorneys — and witnesses as well — to "shut up;"
has told witnesses he doesn't believe them ; has threatened lawyers with "one
of those 15-cent meals" at the County jail. Most often these insults are con-
veyed in a loud voice.
Some lawyers argue that he only humiliates those lawyers who are unpre-
pared or incompetent, or those he feels are trying to abuse the legal system.
But others argue that the unpreparedness is sometimes a result of the short
notice he allegedly gives, and that his sarcasm and his wrath fall also upon
competent, prepared lawyers who happen to be out of favor with the judge, or
are representing a client the judge doesn't like.
"I have very mixed emotions about him,"' admits one lawyer. "I have a deep
respect and a feeling of warmth for him. But I despise the way he acts some-
times." Irascible and unpredictable are the adjectives that seem to pop up most,
even among his admirers. Those who like him less also call him tyrannical and
capricious.
All four traits may be due in part — or at least aggravated by — what is
politely known as the judge's "drinking problem." It is reported he can be
abu.sive when intoxicated, even to his friends. "Its like Dr. Jekyll and Mr. Hyde
when he's been drinking," says a former drinking companion, although the
judge has a reputation of holding his liquor well in some quarters.
Although he may be less than discreet about such matters, no one seems to
question his propriety on the bench.
"I have no doubts that he is an honest judge," adds one lawyer. "But I some-
times wonder if he is intellectually dishonest" — that he sometimes lets his
bia.ses stand in the way of justice and/or legality.
His compassion for Indians, poor widows and young first offenders is legend-
ary, and probably stems in part from his poorer days in and near the mines.
"Some of the more moving moments of my life have been sitting in his court-
room listening to him counsel a convicted young person," says one very promi-
nent Salt Lake lawyer. Outside the courtroom he has been known to spend hours
with a hospitalized prisoner giving grandfatherly advice on the evils of drugs.
"His colicky first grandson found relief on the ample slant of
his grandfather's lap . . . Even panhandlers find him a soft touch."
He is described by one close friend as sentimental. And when his first grand-
son was a newborn, allergic to milk, the colicky baby often found relief by lying
on the ample slant of his adoring grandfather's lap. Even panhandlers find him
a soft touch.
Sentencing of prisoners — the most critical and lonely of a judge's duties —
is performed by Judge Ritter with great compassion and concern, say lawyers
who have clerked for him. Sometimes, in fact, his compassion leads him to later
mitigate harsh sentences if he learns of extenuating family circumstances (a
sick mother, many mouths to feed).
"The judge has a very open willingness to reconsider matters," notes one
lawyer, who adds, however, that sometimes the compassion forgets what the
evidence had originally dictated.
On the other hand, Ritter is reputedly a man who holds on tightly to a grudge.
After his nomination to the federal bench was finally approved by Congress,
20
according to a once close friend, the Judge found out which lawyers had written
letters opposing that nomination. It has been reported that those attorneys later
suffered his wrath when appearing in his court.
Another of the Judge's grudges, apparently, is Gov. Calvin Rampton, who,
as a lawyer, represented Ritter's wife in the couple's separation settlement
in 1958. , ^
His biggest grudge, however, is reserved for the press, which he feels has
reported inaccurately and unfairly during his years on the bench. He has at
least twice thrown reporters from his courtroom, for no apparent reason, and Is
reportedly the only judge in the country to ban sljetching for television reports
of the trials in his courtroom. His view of the press is apparent in his contention
that this ai-ticle for Utah Holiday was not "authorized."
And then there are the lawyers for whom he has no particular vendetta, but
for whom he has no great love either. Perhaps it is because he considers them
incompetent; perhaps it is the firm they are with, or the clients they represent.
One is never sure.
Whatever the reasons, there are lawyers in this town who have to turn down
potential clients whose cases are scheduled for Ritter's court, explaining : "In my
current status with Judge Ritter, it would be unfair for me to take your case."
Conversely, says one of these lawyers, who once liked the judge, "knowledge-
able clients will go to cei-tain lawyers because they're more likely to win" (in
front of Ritter) — or at least get kinder treatment and favorable rulings. Other
lawyers strongly deny that Ritter judicially favors his favorite lawyers.
There are people who feel Ritter is the best jurist Utah has ever had, and there
there are people who have been trying for years to impeach him.
His health is not as good as it once was, although since an oi>eration last year,
apparently to remove one kidney, he seems in better form.
As for resigning, his friends say he'll never do it — not until there is a Demo-
crat president who will appoint a Democrat judge. And maybe not even then.
One Man's Justice
". . . his legal vendetta wells up from a reservoir of undisguised
antipathy for judges' 'absolute immunity' and many Utah lawyers."
Julius Petrofsky isn't intimidated by the physical and judicial altitude of
U.S. District Court Judge Willis W. Ritter. After all, most of Petrof sky's oppo-
nents (and allies as well) poke their heads at least a few inches higher into the
atmosphere than he does. What Petrofsky may lack in height, he makes up in
dogged determination.
Petrofsky "grew up" in Jersey City, New Jersey, where Mayor Hague's slogan
was, "I am the law." "And he was the law as in many boss-ruled cities," Petrof-
sky' exclaims.
Petrofsky's mother topped out at just over four feet and he left home at 15
to join the Our Gang Comedy team in California where he was dwarfed by many
of the adolescents. "My whole family is short, except my son who is 6'2" and
traveling in Nepal right now. I just got a letter from him the other day asking
for the $1000 I borrowed a while back. I don't have it."
He doesn't have the money, Petrofsky says, because he wedged his whole
bankroll into legal proceedings, most of which have something to do with Judge
Ritter.
Petrofsky's singleness of purpose in these matters led him to leave his Berkeley,
California home and take an apartment in Salt Lake City for the duration of his
legal struggles. "It takes only one person, but you have to be willing to stick your
neck out as far as it will go," Petrofsky says.
Oft-times overbearing in his steadfast determination to see "justice prevail,"
Petrofsky continually emphasizes his motives are not based on a case of "his per-
sonal ox being gored," but an all consuming desire to "right some wrongs."
The intense explosive-dealer's legal vendetta wells up from a reservoir of undi.v
guised antipathy for "Judge Ritter, many Utah lawyers and 'absolute immunity'
for judges." Beyond his current litigation he sees certain judicial decisions as
more evil and long-lasting than the most self-serving U.S. president or Congress at
Its worst. "Presidents and Congresses come and go, but when a corrupt jud^e
gives a corrupt decision that's used as precedent, it keeps working its evil influ-
ence for hundreds of years," he emotes.
21
Frustration with his own litigations and legal research have probably made
Petrofsky a little cynical : "Most people don't know that lawyers are officers of
the court and are not under oath in court and therefore cannot be had for perjury.
It is up to the judge if he chooses to apply contempt of court deceit of the court."
Petrofsky's leather satchel is nevertheless a supermarket of legal information.
From it, he extracts maniia envelopes, dozens of them, and he hastily divests
them of copied depositions, docket sheets, pages from lawbooks, the U.S. Code,
one after another in a procession marching in time with his volatile verbiage.
He has performed hundreds of hours of legal research over the past few years,
presenting it to attorneys, hiring them, dismissing them, losing them, and serving
as his own lawyer on at least one case.
How well he has performed his research and how well his attorneys assemble
and present it will be known in the next several months when the outcomes of at
least three legal suits are determined.
It all began about seven years ago when a California corporation of which
Petrofsky is president sued a Utah corporation to which several million pounds
of explosives had been sold. Petrofsky's firm and the Utah firm regularly bid
against each other for the purchase of surplus government explosives
According to Petrofsky, Judge Ritter gave a summary judgment to the defend-
ant based on Petrofsky's refusal to give information to the defendant "which
could later have been used by them in their bidding against my firm."
The summary judgment by Ritter was reversed by the U.S. Appeals Court, 10th
Circuit, according to Petrofsky. "It took me over a year to prevent the lawsuit
from automatically going back to Judge Ritter's court until I found an attorney,
(former Salt Lake City Commissioner) James L. Barker, who took legal action
which resulted in getting the matter into Judge (Aldon) Anderson's court." There
it currently waits further action. That's case No. 1.
It was after Judge Ritter's summary judgment in this case that Petrofsky
began to "suspect a connection between Ritter, his decisions and attorneys
practicing in his court n'ho have also served Ritter as his private legal counsel."
Petrofsky says that while he was researching this hypothesis in the clerk of
the court's (Ritter's) office. Judge Ritter issued an oral directive to his staff ban-
ning Petrofsky from the premises. Petrofsky countered with a suit aaginst Ritter,
claiming that his ban from public records was illegal, violating his civil rights.
The case went before Judge Aldon Anderson who agreed with defense attorneys
that judges have absolute immunity in judicial acts and therefore Judge Ritter
was within his rights to exclude Petrofsky from Ritter's court area.
Petrofsky contends that Ritter's act of banning him from access to public
records was an administrative act and not a judicial act. "Every case coming
into a court could, by the judge in that court, be sealed in a judicial act," Petrof-
sky says, "but if it isn't sealed by the judge, it becomes public record."
"Those records I have been researching are not sealed, they are public records,
and this is my concern," Petrofsky emphasizes.
"The U.S. Statute pertaining to public inspection of Court records is an admin-
istrative function. Title 28, U.S. Code, Section 753, pertains to administrative
and not judicial acts," Petrofsky says.
Petrofsky appealed Judge Anderson's decision to the 10th Circuit Court of
Appeals, which affirmed the defense's claim of "absolute immunity" based on the
alleged judicial act.
Now Petrofsky's appeal is before the U.S. Supreme Court, pursued personally
by him acting as his own attorney. He explains, "only a small percentage of cases
presented to the Court are even considered and only about 10% of those go as far
as oral argument. If mine goes that far, I will have to hire an attorney for that
argument." That's case No. 2.
Despite his ban by Ritter from the records, Petrofsky has uncovered some
facts in his research that lead him to believe that Judge Ritter favors attorneys
from several Salt Lake City law firms. Painstakingly checking lawbooks and
documents in courthouses and at the University of Utah, Petrofsky has uncovered
Judge Ritter's private involvements in litigation and took note of the law firms
representing Ritter in those cases. He then reviewed docket sheets from Ritter's
U.S. District Court to see how lawyers from these same firms fared in Ritter's
court.
His conclusion? "I believe tnere is a pattern of favoritism toward those repre-
senting Judge Ritter personally in other legal action," said Petrofsky. "The
22
lawyers connected to Judge Ritter during the period of 1970-74 were involved
in 40-some cases before him (not including those involving the state or federal
government) and they didn't lose one of them."
Petrofsky's secondary bone of contention in Ritter's outside legal involvements
is the United States Code. Title 28, Section 455 : "Any justice or judge of the
United States shall disqualify himself in any case in which he . . . is connected
with any party or his attorney as to render it improper, in his opinion, for him
to sit on the trial, appeal, or other proceeding therein."
While the words "or his attorney" support Petrofsky's arguments, the phrase
"in his (the judge's) opinion" seems to nullify them. Ritter can simply leave him-
self on the case. Petrofsky hopes the legal system will remove that decision-
making power, deeming it unjust.
Petrofsky says that Title 28 U.S. Code, Section 144 states that it is procedure
for the attorney of a litigant to file a motion based on the aflSdavit of his litigant
concerning the prejudice of a judge against that attorney's client. "Judge Ritter
and a number of attorneys did not reveal their connections in several cases in
Ritter's court over the past few years and opposing attorneys and their parties
therefore had no opportunity to file afladavits and motions concerning judicial
prejudice," Petrofsky said. He therefore disclosed that he will file one or more
lawsuits against them within the next few weeks. That's case No. 3.
Another of Petrofsky's research "discoveries" is an alleged conflict between
what Judge Ritter reported in a government document and that which he said
in a deposition involving some of his personal litigations.
Petrofsky says that Ritter testified in a case involving a Trust vs. a corpora-
tion that he (Ritter) had been one of the Trust's five original trustees, and that
he had resigned in April, 1970.
A Public Report of Extra-Judicial Income filed by Ritter for the period
January 1-June 30. 1970 shows that the judge wrote "none" under all sections
of the report. Petrofsky points out that the trusteeship may not have necessarily
involved income for Ritter. but Section V of the report entitled "Positions Held
During Reporting Period" asks about any official positions.
It reads : "List all positions held by you in any organization, business or chari-
table, such as an officer, director or trustee, regardless of whether any compensa-
tion was received therefore."
Ritter wrote under the section, "none," and signed the report. Petrofsky says,
"there's serious conflict there. Ritter leaves a gap of four months, from January
to April, unaccounted for. His testimony and official report conflict."
Petrofsky's data on this matter now rests in the hands of U.S. 10th Circuit
Court of Appeals Judge David Lewis. It was referred to Judge Lewis, according
to Petrofsky, by the Judicial Council of the United States, made up of only the
Chief Judges of each of the U.S. Courts of Appeals (about 12).
While these matters may rest in various stages of litigation and/or considera-
tion, Julius Petrofsky does not rest. He continues his relentless pursuit for his
justice.
Administrative Office of the
U.S. Courts.
Washington, D.C., September 21, 1973.
Hon. Carl Albert,
Speaker, House of Representatives,
Washington, D.C.
Dear Mr. Speaker : On behalf of the Judicial Conference of the United States,
I am transmitting herewith a draft of a bill, approved by the Conference, to
amend the Act of August 6, 1958, 72 Stat. 497, relating to service as a chief
judge of a United States district court.
The bill would repeal a section of that Act permitting a judge of a two-judge
district court, serving at that time as the chief judge of such a court, to retain
his position as chief judge after reaching age 70. All other chief judges of district
courts, including judges in two-judge district courts who became chief judges
after the passage of the 1958 Act, must reliquish their positions as chief judges
at age 70.
The Judicial Conference believes that this exception, for chief judges of two-
judge district courts, to the general rule of relinquishing chief judgeship positions
at age 70 has outlived its usefulness and should be eliminated.
Accordingly, it is recommended that the draft bill be referred to the appropri-
ate committee for early and favorable consideration. Representatives of the
23
Judicial Conference and of this office will be glad to appear and testify at any
hearing may be held, or furnish any additional information that may be
requested.
Sincerely yours,
Rowland F. Kirks,
Director.
Enclosure.
[H.R. 10615, 93d Cong., 1st sess.]
A BILL To amend the Act of August 6, 1958 (72 Stat. 497), relating to service as chief
judge of a United States district court
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That section 3 of the Act of August 6, 1958
(72 Stat. 497) , is amended by changing the first comma to a period and by striking
all of the remainder of the sentence.
Administrative Office of the
U.S. Courts,
Washington, B.C., May 7, 1916.
Hon. J,4.KE Garn,
U.S. Senate, Dirksen Senate Office Building,
Washington, D.C.
Dear Senator Garn : Thank you for your letter of May 3, 1976 advising me
of the hearings on S. 1130 scheduled to be held on May 18. I would appreciate
it if you will introduce into the public record my letter expressing the support
of the Judicial Conference for this measure.
Inasmuch as Chief Judge David Lewis will be testifying in behalf of the
Judicial Conference as well as in his capacity as Chief Judge of the Tenth Circuit,
I am sure that much of the information relating to the proposed legislation will
be submitted in Judge Lewis' testimony. Should you feel that this office can,
however, be of any further assistance to you in this matter please feel free to
call on me.
Sincerely yours,
Rowland F. Kirks,
Director.
Department of Justice,
Washington, D.C, May 3, 1974.
Hon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives,
Washington, D.C.
Dear Mr. Chairman : This is in response to your request for the views of the
Department of Justice on H.R. 10615, a bill "To amend the Act of August 6, 1958
(72 Stat. 497). relating to service as chief judge of a United States district court."
Under existing law, 28 U.S.C. 136, the chief judge of a district court is the judge
of the court who is senior in commission and under seventy years of age, unless
no judge of the district court is under seventy years old.
The Act of August 6, 1958, which enacted the present version of this section,
excepted from its coverage the chief judge of any district court having only two
judges in regular active service so long as the chief judge .sitting on the date
of enactment continued to be a district judge. H.R. 10615 would delete from the
Act of August 6, 1958, that exception.
H.R. 10616 was introduced on the recommendation of the Judicial Conference
of the United States. The Department of Justice concurs in the recommendation
of the Judicial Conference that this legislation be enacted.
The Office of Management and Budget has advised that there is no objection
to the submission of this report from the standpoint of the Administration'.s
program.
Sincerely,
W. Vincent Rakestraw,
Assistant Attorney General.
24
Jones Day, Reavis & Pogue,
Washinffton, D.C., July 10, 1975.
Re S. 1130
Hon. E. J. Garn,
Senate Office Building,
Washington, D.C.
Dear Senator Garn : Your letter of June 25th, relating to this bill, came to my
office while I was away on a short vacation. This is the first opportunity I have
had to respond. I am sorry for the delay.
The situation with respect to the Chief Judge in the United States District
Court in Utah is unique, and, I think, unfortunate. It is now nearly twenty years
since Congress provided by law that no judge should serve as a Chief Judge after
he reached the age of 70, with a few special exceptions. There is now only one
judge in this special group, and the reason for any exception no longer exists.
Several years ago, while I held the office of Solicitor General of the United
States, I was concerned about this situation. I got in touch with Congressman
Emanuel Celler, the Chairman of the House Judiciary Committee, and with Con-
gressman William M. McCuUoch, then the ranking minority member of that com-
mittee. I spoke to them because I had been dealing with them on a matter involv-
ing an amendment of the Criminals Appeals Act. Both Congressmen Celler and
McCulloch were interested in the repeal of the proviso in the Act of August 6,
1958. However, they reported to me that neither Senator from Utah would sup-
port such a statute, and that tliey felt that there was no prospect of proceeding
successfully in such a matter without the support of at least one of the Senators
from the area involved. Consequently, the matter was dropped.
I am very glad to learn that you are interested in this provision, and I hope
that you will continue to support S. 1130. The basic policy of 28 U.S.C. 136 —
namely, that a judge shall cease to be Chief Judge upon reaching the age of 70 —
is sound, as has been shown by a great deal of experience in our juaicial system.
It is quite unwarranted, it seems to me, to have a special provision in our statutes
which makes this poUcy inapplicable in a single case. The time has clearly come,
in my opinion, when that exception should be repealed, and the same rule should
be applicable in Utah as in all of the other States of the Union.
If I can be of any other assistance to you, please let me know.
With best wishes.
Very truly yours,
EiRwiN N. Griswold.
U.S. Court of Appeals, Tenth Circuit,
Salt Lake City, Utah, April 2, 1975.
Hon. E. J. (Jake) Garn,
U.S. Senate, Wasliington, D.C.
Dear Senator Garn : I have received your letter of March 19, 1975, requesting
appropriate information concerning your anticipated testimony relating to S. 1130
and have instructed the clerk's office and circuit executive in Denver to promptly
furnish the Administrative Office all information contained in that office that is
pertinent to your inquiry. I understand you have made a similar request from
the Administrative Office.
As you may know, I have publicly supported earlier versions of this Bill as a
member of the Judicial Conference of the United States but such efforts have
been to no avail. Former Solicitor General Griswold has on more than one oc-
casion taken an active interest in the legislation and you might be interested in
talking to him about the Bill and the difficulty in getting Senate attention focused
on the problem.
As you note in your introductory remarks, the Bill has merit and should be
enacted for the reasons you give and my support for it is not dependent on any
personal opinion as to whether Judge Ritter is a good, bad, or indifferent judge.
The specific information you seek, as reflected from our official court records
in Denver, will be included in the Administrative Office's re.sponse. However, I
am enclosing two very recent opinions of our Court which reflect consideration
of a high incidence of complaint that comes from lawyers arguing appeals before
us. Of course complaints from losing litigants should be considered with caution
and such complaints are made against judges other than Judge Ritter. However,
dissatisfaction and claims of prejudice are very freauent in Utah appeals.
Sincerely,
David T. Lewis.
25
Tempobaby Emekgency CotrsT of Appeals
OF THE UlvlTED STATES,
Salt Lake City, Utah, May 11, 1976.
Hon. Jake Gabn,
U.S. Senate, Washington, B.C.
Dear Senator : I acknowledge receipt of your letter of May 5, 1976, renewing
your suggestion that I submit a statement concerning the proposed repeal of the
grandfather provision covering the chief judge of a two-judge court.
As I indicated over the telephone \vhen I declined your previous invitation, I
WIS not inclined to become embroiled again in the long-standing administrative
difficulties in the District of Utah which finally led to my taking senior judge
status in 1971 before ordinarily I would ha^e considered it. Several of these
problems were explored by the Judicial Council of the Tenth Circuit, the record
of which, including some corrective orders, should be available to you and a con-
tinuum of which is treated in Utah Idaho Sugar Company v. Ritter, 461 F. 2d 1100
(10th Cir. 1972).
While the administrative problem has precluded my rendering any substantial
judicial service to the District of Utah since I assumed senior judge status, I
have been given more challenging and satisfying opportunities through my ap-
pointment by the Chief Justice shorty after my retirement as a member of the
Temporary Emergency Court of Appeals of the United States on which I continue
to serve, as a member of the Advisory Committee on the Rules of Procedure of
the Judicial Conference of the United States, and in special assignments in
various parts of the country. Thus, I have not been anxious to be propelled back
into the local administrative situation and, indeed, since my retirement have
endeavored to keep free of involvement in the hope that some independent means
might be discovered to achieve harmony which I had been unable to discover. I
attempted to express that attitude and hope in my retirement statement to the
bar and to promote additional improvements that I had been unable to achieve in
the copy of my statement to the bar at the time of my retirement. I am not in a
position to speak firsthand concerning the situation since.
However, so that my position may not be interpreted as one of indifference
toward the pending legislation, I hav^e decided that I should make clear that I
continue to support it and urge its passage, and this I am confident would be my
position apart from any personal exposure to the problem.
I would prefer to have my position now emphasize rather than personal con-
siderations, the overall policy commending the transfer of chief judge respon-
sibilities at age 70 in all instances and that especially in two-judge courts is this
desirable.
When the grandtatner clause was originally approved by the Congress, there
could have been an impression that in two-judge courts the general rule for
chief judges to step down at the age of 70 was not as important as in larger
courts. My experience and observation has demonstrated that the application
of the general rule may be more important in two-judge courts than in larger
courts where rules may be adopted by majority vote of the judges and incon-
siderate decisions with respect to supporting personnel may be controlled by
majority vote. In a two-judge court, if the judges cannot agree upon generally
applicable local rules of court, no such rules can be adopted without intervention
of the Judicial Council, and in the event of disagreement among the judges in a
two-judge court concerning the employment or discharge of supporting personnel
and with respect to various other decisions on which the majority of the judges
in larger courts have final say, in a two-judge district court the chief judge has
unrestricted po\ver.
I believe that the statutes governing the designation, tenure and powers of
chief judges could well be generally reviewed and perhaps amended as a long
range project to bring them more in consonance with modern administrative con-
ditions and problems of the federal courts. In the meantime, nowever, there seems
no justification for continuing the statutory aberration which the proposed legis-
lation is designed to correct.
Sincerely yours,
A. Sherman Chbistensen,
Senior U.S. District Judge.
Enclosure.
26
State of Utah,
Office of the Governor,
Salt Lake City, May 10, 1976.
Hon. E. J. (Jake) Garn,
Dirksen Senate Office Building,
Washington, D.C.
Dear Senator Gaen : It is my uuderstanding that hearings are to be held in
the immediate future on S. 1130 of which you are the principal sponsor. This bill
would repeal the "grandfather clause" pertaining to Chief Judges in United
States Judicial Districts.
I feel that the bill should be passed. If it were passed, in my opinion it would
result in improved administration and supervision of the calendar in the United
States District Court for the District of Utah. Whether the "grandfather clause"
was ever justified from a standpoint of principle is questionable. Undoubtedly, it
was adopted as a matter of expediency to facilitate the passage of the act. How-
ever, if it were ever justified now that there is only one Judge serving pursuant
to the "grandfather clause", and he is a substantial number of years beyond the
cut-off age, the continuation of the "grandfather principle" can no longer be
justified.
I would appreciate it if you would place this letter in the hearing record on
the bill.
Sincerely,
Calvin L. Rampton,
Governor.
WHEREAS a resolution was adopted by the membership of the Utah State
Bar in attendance at the Mid- Year Meeting January 11, 1974, calling for a
secret poll of the Bar membership concerning the "Grandfather clause" whereby
certain District Judges continue to serve as Chief Judges after age 70 and with
the results of said poll to be made available to the United States Congress, and
WHEREAS said secret poll was conducted with 77.7% of those responding,
constituting 50.8% of the active membership of the Utah State Bar, voting in
favor of the repeal of the "Grandfather clause," and
WHEREAS this information was transmitted to the Congress of the United
States, to the two Utah members of the House of Representatives and to each
of the United States Senators from Utah, and
WHEREAS a resolution was submitted to the Board of Commissioners of the
Utah State Bar for consideration of the membership of the Utah State Bar at
its Mid-Year Meeting January 10, 1976, urging passage of S1130, action similar
to that previously acted upon by the membership of the Utah State Bar, the
Board of Commissioners of the Utah State Bar made no recommendation with
respect thereto, the bar membership having previously acted thereon, but sub-
mitted the same to the Bar membership in attendance, and
WHEREAS the resolution was presented on the fioor for consideration of the
membership, and carried by a vote of 106 for to 62 against,
NOW THEREFORE the ofiicial action of those members of the Utah State
Bar assembled at the January 10, 1976, Mid-Year Meeting of the Utah State Bar
is affirmed to be in favor of S1130.
Harold G. Christensen,
President, Utah State Bar.
Attest :
Dean W. Sheffield, Executive Director.
Utah State Bar,
Office of the President,
Ogden, Utah.
To the Congress of the United States of America :
WHEREAS, a resolution was duly adopted by the membership of the Utah
State Bar in attendance at the Mid-Winter 1974 Meeting of the Utah State Bar,
January 11, 1974, that a secret poll be taken of the entire active membership
of the Utah State Bar, concerning the "grandfather" clause of Section 3, Public
Law 85-593, whereby certain District Judges continue to serve as Chief Judge
of their Districts after age 70, to determine whether the membership of the
Utah State Bar favored the repeal of the "grandfather" clause, and
WHEREAS, such a secret poll was undertaken, which resulted in 77.7% of
those responding voting in favor of repeal and 22.3% voting against repeal, and
27
WHEREAS, the 77.7% voting for repeal constitutes 50.8% of tlie active mem-
bership of the Utah State Bar,
NOW, THEREFORE, this resolution is to memorialize Congress, in accord-
ance with said resolution and poll, to repeal the "grandfather" clause of Section
3, Public Law 85-593. to eliminate the exception under which certain U.S.
District Judges continue to serve as Chief Judges of their respective Districts
after age 70.
By direction of the Board of Commissioners :
La Vab E. Stark,
President, Utah State Bar.
Attest :
Dean W. Sheffield, Executive Secretary, Utah State Bar.
U.S. Depaetment of Justice,
U.S. Attorney,
DiSTBiCT OF Colorado,
Denver, Colo., May 11, 1976.
Hon. Jake Gabn,
U.S. Senate,
Washington, D.C.
Dear Senator Gabn : I personally support S. 1130. My background is that I
have engaged in a heavy trial practice in federal court for nearly 25 years, seven
of those years as United States Attorney for the District of Colorado.
I see no valid basis for distinguishing between large and small districts in pro-
viding for the tenure of chief judges. History has shown, in fact, that a tragic
mistake occurred when the exception was made.
I thank you for permitting me to comment.
Sincerely yours, James L. Treece,
U.S. Attorney.
U.S. Department of Justice,
U.S. Attorney,
District of Idaho,
Boise, Idaho, May 12, 1976.
Hon. Jake Garn,
U.S. Senate,
Dirksen Senate Office Building,
Washington, D.C.
Dear Senator Garn : I was happy to receive your letter dated May 6, 1976
with regard to Senate Bill 1130.
This bill has been needed for the last twenty years and the failure of the
Congress to enact the bill has resulted in great diflBculties in a few districts.
Unfortunately, age sometimes accentuates the tendency to become arbitrary
dictatorial, and also causes a lessening of the abilities of a judge.
The condition in the State of Utah has been a scandal among the Bar in
Utah and Idaho and the Western States for many years.
There is no sound reason for the "grandfather clause" pertaining to two-judge
districts. The problems are the same with aged judges whether it be a small
district or a large district.
I most certainly urge the passage of Senate Bill 1130 and the prompt repeal
of the so-called "grandfather clause."
Very truly yours,
Marion J. Callister,
U.S. Attorney.
TiBBALS AND StATEN,
Law Offices,
Salt Lake City, Utah, May 11, 1976.
Re Senate Bill 1130.
Senator E. J. Garn,
U.S. Senate,
Dirksen Senate Office Building,
Washington, D.C.
Dear Senator Gabn : Please accept my sincere thanks for your courtesy in
keeping me advised as to the progress of this Bill above referenced. I hope it
28
may not be presumptious of me to reiterate at this time, my feeling that this
amendment is essential in the interest of sound legislation. Experience seems
to teach that the creation of exceptions to the enforcement or etfectiveness of
legislation such as the exception created in the original enactment 72 Stat. 497
inevitably lead to inequities, injustice and in many cases outright hardship. If
legislation is proper, it should apply equally to all.
In this case, the people of the State of Utah have been greatly imposed upon
by the execption which permitted Chief Judge Ritter in our United States Dis-
trict Court to retain that position far past the mandatory retirement age pre-
scribed for others. The mere fact that he was, at the time of the original
enactment, an incumbent and would be effected by the law seems hardly an
excuse for making an exception. I urge the enactment of Senate Bill 1130.
I am sure from your long tenure in public office in this City, you are aware of
the many problems that the people of this State have been confronted with by
virtue of the judicial intemperance of the Chief Judge. Perhaps it might not be
amiss to bring to your attention the statements made by the Chief Judge as
quoted in this mornings Salt Lake Tribune on the issue of a Grand Jury. As you
are probably aware, he preempterly dismissed a Grand Jury which was in the
middle of deliberations and consideration of matters which apparently, though
the secrecy has not been violated to my knowledge, of violations by certain
persons and the Judge refused to permit the Grand Jury to continue its delibera-
tions. He has been forced to call a new Grand Jury by action of the United States
District Attorney who requested the Tenth Circuit Court of Appeals to compel
Ritter to call a Grand Jury. Before the matter w-as heard in the Tenth Circuit,
Judge Ritter complied and called for a Grand Jury. I submit to you, the state-
ments as quoted in the Tribune. I personally, have in years gone by, heard Judge
Ritter hold forth on exactly the opposite side of this question, extolling the
Grand Jury as one of the great democratic institutions which protected the
citizens against the intemoerance of the Courts, the Magistrates and the
Prosecutor.
Would it be too much to assume that perhaps Judge Ritter's present dislike
of the system stems from his inability to control the system in a few years past
when in his desire to get at the Salt Lake County Sheriff, he irregularly im-
paneled a Grand Jury, succeeded in getting this Grand Jury to pose indictments
in an area in which the Grand Jury had no legitimate right of inquiry and was
infuriated when the Department of Justice refused to permit the United States
Attorney to sign the indictments thereby rendering them ineffectual. Nonetheless,
despite this knowledge of the fact that the indictments were not lawful. Judge
Ritter released them to the press. The damage to Sheriff Larson's reputation
in the community cannot be assessed. It was an act which will long stand out
in the opinion of many of the citizens of this state as an example of abuse of
Judicial power.
It is time that Judge Ritter was relieved, not only of his duties as Chief Judge,
but of his duties as Judge. It is unfortunate the legislation under consideration
cannot accomplish the second objective as well. Certainly the continuance in the
office of Chief Judge is a disservice to the people of this State. Your Bill is well
founded and should be enacted.
With all good wishes, I remain,
Very truly yours,
Alj>en H. Tibbals.
The Attoeney General,
State of Utah,
Salt Lake City, Utah, May 11, 1976.
Re S. 1130
Hon. E. J. "Jake" Gaen,
U.S. Senate,
Dirksen Senate Office Building,
Washington, D.C.
Dear Senator Garn : As the former City Attorney of Salt Lake City (1968-
1974) and as a private practitioner since 1953, I have practiced law before the
United States District Court for the District of Utah and am familiar with the
provisions of the Act of August 6, 1958 (72 Stat. 497) under which Willis W.
Ritter is the only remaining Chief Judge of a United States District Court who
is over seventy years of age.
29
In view of the strong public policy expressed in the Act of August 6, 1958,
relating to the maximum permissible age for chief judges of federal district
courts, and my own experience before the United States District Court for the
District of Utah, it is my opinion and recommendation to the yubcommittee on
Improvements in Judicial Machinery of the Senate Judiciary Committee that
the interests of justice will be served by the enactment of the subject bill which
has my unqualified support.
Respectfully yours,
Jack L. Crellin,
Assistant Attorney General.
Cannon and Duffin,
Attorneys at Law,
Salt Lake City, Utah, May 10, 1976.
Re Amendment to section 3 of the Acts of August 6, 1958, (72 Stat. 497) Hearing
set for May 18, 1976.
Senate Judiciary Committee,
U.S. Senate,
Washington, D.C.
Gentlemen : My interest is in having the Committee act favorably on the
proposed amendment to the subject act.
It may be that my feelings might be dismissed as being biased and prejudiced.
At the hearing in Salt Lake City prior to the appointment of Judge Willis W.
Ritter. I appeared and testified that he did not have a judicious temperment and
therefore I was opposed to his appointment. Time has not change my opinion.
Noting those testifying in his behalf, one finds those who api>ear before him on
behalf of clients. Prudence would so dictate. Once I appeared before his court
after his apix>intment. I will never appear again. I feel clients of mine would not
be given judicious consideration. It is almost thirty years since he was appointed.
I have been in the federal court but once. That is a sad commentary on our
system. Not only have I felt limited, but my associates have felt it is a disadvan-
tage to be associated with me in our practice.
The law itself is unfair as it makes an exception. Everyone should play under
the same rules and especially in federal courts.
It is respectfully urged that the committee recommend passage of the pro-
posed amendment to have the law apply to all equally.
Respectfully yours,
T. Quentin Cannon.
Meredith, Barber & Day,
Attorneys at Law,
Salt Lake City, Utah, May 7, 1976.
Re The Honorable Willis W. Ritter, Chief Judge, United States District Court
for the District of Utah.
Hon. Jake Garn,
Senate Office Building,
Washington, D.C.
Dear Senator Garn : I have been informed that the Senate Judiciary Com-
mittee is contemplating hearings related to the repeal of the Grandfather Clause
under which the Honorable Willis W. Ritter retains his position as Chief Judge
of our District.
Though I am philosophically opposed to congressional tampering with the
bench, I am in full agreement that the Grandfather Clause should be repealed
solely because it will effect the status of the Honorable Willis W. Ritter and
the quality of justice which is dispensed by the United States District Court
in Utah.
I have had significant experience before the Honorable Willis Ritter and
have many times witiies.«ed the arrogant, tyrannical, arbitrary, and insulting
manner in which Judge Ritter conducts his court and treats the individuals
who appeared therein. Of particular concern to me is the manner in which the
calendars of trials and events are conducted in that court and the fact that
Judge Ritter does not conduct either trials or rule days on a regular basis, but
seems to hold the entire legal community of the District of Utah at his beck and
call and exercises his apparent prerogative to demand immediate appearance
78-678 O - 77
30
with no consideration for the scheduling difficulties and the other business of the
participants in proceedings before him.
The last occasion upon which I had tlie pleasure of appearing before Judge
Ritter was in a trial of United States v. Karl J. Bray, No. (5-14b2 in the United
States District Court for the District of Utah, in Information under which
Mr. Bray, a tax protester, was tried on two counts of violations of the Internal
Revenue Code. The case is presently on appeal with one assignment of error
relating to the refusal of the Honorable Chief Judge to recuse himself from
trial of the case. I have taken the liberty of enclosing herewith a copy of the
brief in that case which contains significant vei'batim quotes from the record
which I hope will be useful to you in demonstrating the egregious manner in
which Judge Ritter conducted this trial. The areas which I have indicated by
red markings, though I cannot state that they are typical, are not so atypical
as to fail to give me great concern for the overall judgment and competence of
this man and his overall ability to properly conduct the judicial business of
the District courts in our State. The records of a significant number of other
cases will reflect the same kind of comments and actions from the bench, and
I feel they would be most interesting to the members of your committee.
I would be happy to respond to any questions you may have related to my
experiences in Judge Ritter's court or, in particular, his conduct of this case,
and would welcome any opportunity to discuss these matters with you either
personally or by further correspondence.
Yours very truly,
Jamks N. Barber,
Attorney at Law.
Calvin A. Behle,
Ogden, Utah, May 13, 1976.
Re: S. 1130
Hon. Jake Gaen,
Dirksen Senate Building,
Washington, D.C.
Dear Senator Garn : Through your legislative assistant Lincoln Oliphant
you have asked me to confirm any public statements that I have made pertain-
ing to the incumbent Chief Judge of the Federal District Court of Utah, in
connection with the hearing on S. 1130. I have strongly supported this Bill
designed to remove the discrimination against the State of Utah by way of
having its citizens alone suffer as our Federal judicial affairs continue to be
presided over administratively by an incumbent who is now well over the age
of 75.
At the outset may I state that I have known this Judge, and generally
favorably, since I was one of his students at the University of Utah Law
School more than 45 years ago. No one can fault him for not having a brilliant
mind. However, a lack of judicial temperament (which on candid occasion he
freely admits) has made the trial of cases in his court on too frequent occasion
most difficult for counsel, clients, court personnel and indeed all attending or
participating. Ample support for this will come from the News Media, Members
of the Bar, court personnel who are in a position to talk, his judicial associates
and from official records on appeal. But personally I do not know of anything
in his conduct which would justify impeachment.
It has been primarily and upon much too consistent occasion that his lack of
judicial temperament is displayed in his administrative capacity as Chief Judge.
These instances too may be collected from sources suggested. The situation
seems to have become aggravated to an almost impossible point now that his
normal retirement age from that position was achieved, and it was discovered
that he could apparently go on until death because of the legislative provision
commonly designated "The Grandfather Clause."
In 1972 as State Delegate elected by Utah lawyers and then also the member
from the Intermountain Area on the American Bar Association Board of Gov-
ernors I was approached from several sources as to why the Bar could or would
not do something to call the attention of Congress to the discrimination against
Utah. Many instances were cited — some known to me personally — where the
incumbent Chief Judge had seemed to be most arbitrary in his administrative
actions. One item only of particular concern to Bench and Bar alike was his
refusal to establish court rules pertaining to such matters as the assignment to
31
cases between the Federal Judges of Utah — requiring special action by the
United States Court of Appeals for the Tenth Circuit.
In seeking an answer to this question above I was advised by the Chairman
of the American Bar Association Committee on the Federal Judiciary and also
by the Office of the Chairman of the Judiciary Committee of the Senate (1)
that the reason why the incumbent continued as Chief Judge beyond the age
of 65 was the courtesy provision of The Grandfather Clause; and (2) that
until the Bar of Utah took exception there seemed no reason why this courtesy
should not continue to be extended for a long as the last Federal Judge in the
whole United States Incumbent at the time the mandatory 65 retirement rule
from administrative position was enacted, remained in office.
Accordingly at the June, 1973 meeting of the Utah State Bar at Provo, Utah
a written resolution was submitted by me for action whereby the Utah State
Bar respectfully was to request Congress to repeal the clause which was result-
ing in the discrimination against Utah and its citizens. The incumbent was an
outstanding example of just why the mandatory age had been passed. The reso-
lution also would require the Board of Commissioners of the Utah State Bar
to so advise Congress and the Congressional delegation from Utah, of the official
position of Utah's Bar. This motion was duly presented at the time set by the
President of the Utah State Bar ; was fairly and fully debated ; and by standing
vote was adopted by more than two-thirds of the members present. Thereafter
(the number present was far short of the entire membership — the Utah State
Bar is integrated for all lawyers) a written ballot was submitted. More than
a majority of the entire memhership returned their ballots in favor of requesting
Congress to repeal the discriminatory Grandfather Clause exception. The Bar
so notified the Utah members of Congress. This position was maintained after
debate as recently as this year.
Here we have a balancing of whether the continued courtesy extended the
particular incumbent of the office of Chief Judge of the Federal District Court
of Utah is justified in the cause of justice, as against removal for the public
good of the exception existing now for him.
In my opinion as stated above there is no justification for the continuance
in the administrative office of one who has so flagrantly and frequently per-
formed in the very manner which led to legislation for mandatory retirement
at age 65. Otherwise this situation which reflects upon the Federal Judiciary,
the Bar. and indeed the entire administration of Jiistice in the eyes of the
citizens of Utah will no doubt continue indefinitely until death eventually will
strike. We would not wish such a solution.
Sincerely,
Galvin a. Behle.
STATEMENT OF HON. JAKE GARN, U.S. SENATOR FROM UTAH
Senator Garx, Let me begin, Mr. Chainnan, by expressing my per-
sonal gratitude to you for scheduling this hearing. The assistance of
the distinguished Ranking Minority Member is also greatly appre-
ciated. This hearing has been sought for years by leading members
of the judicial branch, the bar, and concerned citizens, and on behalf
of these interested parties, I express my sincere thanks.
S. 1130 will repeal the exemption to 28 U.S.C. 136 which now allows
the Chief Judge of only one U.S. District Court to maintain his chief
judgeship after age 70. Other witnesses will provide information of
a specific nature concerning the judge's court administration and I
will supplement that information, leaving details to the experts.
I will provide tlie committee with background information, policy
considerations, and the sentiment of Utahans who resent and regret
the way the U.S. District Court for the District of Utah is being
managed.
The first section of my testimony is a judicial history of the grand-
father clause and I will skip that over to the middle of page 5.
Mr. Chairman, I would say that I am sympathetic with your senti-
32
ments expressed to me in a recent letter :"...! believe that it is bad
policy for the Congress to renege on a grandfather provision which
is adopted in order to allay opposition to a bill" — letter from Quentin
N. Burdick to Jake Garn, December 1, 1975. And I certainly think
there is wisdom in your desire to keep commitments.
The above statement, however, is a general statement, a statement
that must permit exceptions. And just as in 1958 when circumstances
persuaded Congiess to permit an exception to the general rule that
chief judges relinquish that role at age 7. , so today the facts compel
us to adopt another exception and repeal this "grandfather clause."
This exception need not be based on political reality as the 1958 ex-
emption was, but can stand on merits of fact, reason, and justice.
I have stated that ''grandfather clauses" are sometimes necessary
and acceptable. I have also agreed with the distinguished chairman
that they ought not to be reneged except under unusual circumstances,
but I am resolved to see this particular clause revoked because this
situation contains more than enough facts to classify it as "unusual."
The following facts and policies have convinced me that S. 1130
should pass and that this committee ought to repeal any grandfather
clause when the weight of evidence becomes as burdensome as it does
in this case.
S. 1130 ought to pass because the same organizations that supported
the original act and its amendments now support repeal of the clause
of exception. AVho were those organizations that supported H.R. 985
in 1957 and 1958 ? The Judicial Conference, the American Bar Asso-
ciation, the Department of Justice: The most objective, deliberative,
and influential entities of the American judicial system. What organi-
zations now support S. 1130? The Judicial Conference, which says,
"The Judicial Conference believes that this exception . . . has outlived
its usefulness and should be eliminated" — letter from Rowland F.
Kirks, director, administrative office of the United States Courts to
Carl Albert, Speaker of the House of Representatives, September 21,
1973 — it's added to this statement — and also a letter of confirmation
from Rowland F. Kirks to Jake Garn on May 7, 1976, reaffirming this
position of the Judicial Conference.
The Department of Justice, which says : "The Department of Justice
concurs in the recommendation of the Judicial Conference that this
legislation be enacted"— letter from W. Vincent Rakestraw, Assistant
Attorney General to Peter W. Rodino.
Although the House of Delegates of the American Bar Association
has taken no specific stand on repeal of the clause, it is believed that
its position has not changed from 1957 when it supported a bill iden-
tical to H.R. 985, as introduced, with a relinquishment date at age
70 years and without a "grandfather clause." The committee on the
Federal Judiciary said, "Your committee is of the view that this
legislation is desirable and should be enacted. Accordingly, it recom-
mends that the House of Delegates adopt the resolution endorsinj^
(the identical bill)." ^
The House of Delegates adopted the language. S. 1130 ought to
pass because the above-cited eminent authorities are joined by other
leaders of the bar and bench in calling for its passage.
Chief Judge David T. Lewis of the U.S. Court of Appeals for the
10th Circuit says :
33
... I have publicly supported earlier ver.sions of this bill as a member of the
Judicial Conference . . . but such efforts have been to no avail. * * * [T]he
bill has merit and should be enacted . . . and my support for it is not dependent
on any personal opinion as to whether Judge Ritter is good, bad, or an indifferent
judge.
Governor Calvin L. Kampton — whom I'm sure you know, ]Mr. Chair-
man— elected three times as Governor of Utah and probably the most
popular governor in the history of the State of Utah, said :
I feel [S. 1130] should be passed. If it were passed, in my opinion it would
result in improved administration and supervision of the calendar in the U.S.
District Court for the District of Utah. AVhether the "grandfather" clause was
ever justified from a standpoint of principle is questionable. Undoubtedly, it
was adopted as a matter of expediency to facilitate the passage of the act.
However, if it were ever justified now that there is only one judge serving
pursuant to the "grandfather clause" and he is a substantial number of years
beyond the cut-off age, the continuation of the "grandfather principle" can no
longer be justified.
This was a letter from Governor Rampton to me on May 10, 1976.
Erwin N. Griswold. former Solicitor General of the United States,
says:
The situation with respect to the Chief Judge in the U.S. District Court in
Utah is unique, and I think, unfortunate.
The basic policy— namely, that a judge shall cease to be a Chief Judge upon
reaching the age of 70 — is sound, as has been shown by a great deal of experience
in our judicial system. It is quite unwarranted, it .seems to me, to have a special
provision in our statutes which makes this policy inapplicable in a single case.
The time has clearly come, in my opinion, when that exception should be re-
pealed, and the same rule should be appJicable in Utah as in all of the other
States of the Union.
The Utah State Bar has gone on record twice favoring repeal of
ihis '"grandfather clause." On January 11, 1971, a resolution was
passed at the midwinter meeting of the bar authorizing a secret poll
of the bar membership concerning this issue — 77.7 percent of those
responding favored repeal.
Similarly, at the midwinter meeting in January 1976, the Utah
State Bar passed a resolution by a vote of 106 to 62 stating ". . . the
official action of those members of the Utah State Bar assembled . . .
is affirmed to be in favor of S. 1130."
S. 1130 ought to be passed because its passage would not frustrate
congressional policy intent as estabJished in 1957 and 1958. We must
remember that H.R. 985 passed both the House and the Senate with-
out the "grandfather clause" and was apjDarently acceptable to both
bodies for over a year until the bill was reconsidered and amended
for political reasons.
It is true that the bill as passed by both Houses (before reconsid-
eration) contained a relinquishment age of 75 years, but the sitting
chief judge in the Federal District Court for Utah is 77 years old,
liaving been born January 24, 1899, and would have had to re-
linquish his chief judgeship nearly 2i/^ years ago even if the more
liberal version of the bill had been signed without the "grandfather
clause."
Unfortunately, that version passed both Houses without being
signed. I caution us against assuming that S. 1130 will frustrate the
intention of the 85th Congress. It will not, as the record shows.
S. 1130 should pass because the policy forecasts given by Senator
Eastland in 1958 for adoption of the "grandfather clause" have
34
proven to be just the opposite of what he reasonably expected them
to be at that time. Proposing adoption of the "grandfather" amend-
ment, Senator Eastland said: "* * * [I]n a district having only two
judges, the administrative duties are not such a heavy burden upon
the chief judge and do not require him to spend a substantial part
of his time in pursuing duties other than judicial. For this reason,
it is deemed desirable not to change the present relationship of the
judges in districts where there are only two judges in active service."
The fact is, Mr. Chairman, that this expectation has not come to
pass and that the experience of two-judge district courts has been
sufficient to show that any amendment to the 1958 bill should have
specifically included two- judge courts, not specifically exempted them.
This conclusion is reached on the basis of the experience of many,
including the man who has perhaps been most affected, A. Sherman
Christensen, senior U.S. district judge, who formerly was in active
service with Judge Kitter in the U.S. district court for Utah.
Judge Christensen explains the dilemma of the two-judge court
as follows. I will skip over that and have it included in the record.
Perhaps the most important reason that S. 1130 ought to pass is
the failure of Judge Ritter to maintain acceptable standards of judi-
cial conduct. Surely any judge who continues to serve as a chief judge
under the provisions of a "grandfather clause" that now applies solely
to him ought to be required to maintain at least acceptable standards
of judicial conduct, pertaining both to his duties as chief judge and
his regular duties as a Federal district court officer.
This is a minimum standard of conduct. I believe. The ideal would
be an expectation that any judge so protected and exempted would
maintain exemplary standards of conduct. Congress can reasonably
expect that when it carves out a special exemption in the law for a
certain class of persons that tliose persons act in a manner consistent
with their special legal status.
If "exemplary" conduct is too hi*Th a standard, then it is reason-
able to require at least "acceptable" behavior. Further, the standards
of conduct can be applied to the judge's total behavior, not just his be-
havior in the area in which he operates under the statutory exemption.
That is, when Congress creates an exemption for certain chief judges,
it ought to maintain that exemption only so long as the exempted
judges maintain standards of "acceptable" behavior, both in their ca-
pacity as chief judges and in their capacity as active Federal judges.
I believe the standard of conduct as to the chief judgeship is self-
evident: if a judge is not adequately performing his duties as chief
judge he renders himself unfit to serve under a special statutory
exemption.
This rule is based on fair play ; political exemptions may be neces-
sary, but they need not be maintained in spite of persistent abuse.
My belief that even non-chief judgeship duties are relevant in deter-
mining whether a statutory exemption which relates solely to the chief
judgeship ought to continue is based on the belief that Congress has an
affirmative duty to end privileges and perquisites specially extended
when abuse occurs in an area so intertwined with the chief judgeship
that performance in one area cannot be separated from performance
in the other.
What kind of reasoning is it which argues that a special one-man
exemption should be continued after it has been shown that the only
35
man still serving under the exemption abuses both his administrative
and regular judicial duties? Must we continue to reward intemperate
and injudicious behavior with a special exemption ? I earnestly hope we
do not.
I have many examples, Mr. Chairman, of this intemperate and in-
judicious action as a chief judge and also as a sitting Federal judge.
I will not take the time of the committee to read them. I will skip
over them and have them included in the record.
Finally, S. 1130 ought to pass because the facade of detached im-
partiality and judicial sufSciency has crumbled from AVillis W. Ritter.
Utahans no longer understand — if, indeed, they ever did — why this
man continues to receive special and unique protection from the simple
rules that apply to everyone else. We yearn for an equal treatment, and
it ought to start with judicial fairness.
Again, I have a parade of items that fill my files from letters from
various people to examples of mistreatment in his court to editorials.
On January 18, 1976, the Ogden, Utah Standard-Examiner editorial-
ized, ''Time Has Come for Federal Judge Willis W. Ritter to Step
Down." Again, I will skip over all of these examples and not take the
thne of the chairman to read them.
Even books have been written about Judge Ritter. I will just read
one quote from Joseph C. Goulden, author of a recent book on Federal
judges. He said, after discussing Judge Ritter for several pages, "At
one point I had decided that Judge Willis Ritter, the perpetual-fury
machine of Salt Lake City, deserved the honor [of ultimate expletive
deleted judge of the Federal courts]. Ritter's bad temper, however,
seems to be fired by age and whiskey more than by innate meanness
and, as is true of any ricocheting object, he occasionally lands on the
right side of an issue.''
Thpse kinds of points are made over, and over, and over again in
letters and in newspapers and now in books. It's time we no longer
reward such behavior with special "grandfather" protection. This is
the veiy least that can be expected of a Government of laws.
]Mr. Chairman, what more can be said? "\Vho else needs to speak?
AYhat further actions need to be taken ? How much more time needs to
pass ? A quote from the attorney general of the State of Idaho : "The
condition in the State of Utah has been a scandal among the Bar in
Utah and Idaho and the Western States for many years." Let's take
the time now to correct it.
Thank you, Mr. Chairman.
Senator Burdick. Thank you. Senator.
Our next witness is the Honorable Ramon M. Child, U.S. district
attorney of Salt Lake City, Utah.
Mr. Child. Good morning. Chairman Burdick. I have with me from
the Department of Justice certain persons who would like to make some
comments. I have Mr. James Dew^ey O'Brien of the Tax Division,
where he is the Acting Deputy Assistant Attorney General. He would
like to present a statement, a written statement for the record.
He has with him Willard C. jNIcBride, who is the Assistant Chief of
the Criminal Section of the Tax Division, in case the committee has
any questions to ask on specifics. I also have with me Mr. Rudolph W.
Giuliani, who is the Associate Deputy Attorney General and he was
Executive Assistant U.S. Attorney in the southern district of New
York and has a great deal of experience in these matters.
36
He would like to say a brief comment before I start and then I have
a statement.
Senator Burdick. Have you got the names ?
The Keporter. No — Giuliani 'i
^Senator Burdick. We want the names for the Reporter at the con-
clusion of the hearing, if you can give them then.
The Reporter. Ill ask them afterward.
Senator Burdick. Fine. Gentlemen, I hope you'll be brief as possible
because we have a Joint Session today at 12 :30, but proceed in any way
you wish.
Mr. Giuliani. My name is Rudolph W. Giuliani, G-i-u-1-i-a-n-i. I
am Associate Deputy Attorney General. Mr. Chairman, we will be
very brief. And I'd "just like to say a few things to place in context
before Mr. Child's testimony.
We're here from the Department of Justice to testify in support of
S. 1130 to repeal the "grandfather clause" of Public Law 85-593. The
rationale of that law is simply that, as a general rule, the Congress has
determined that it is inconsistent with the public interest for a judge
to do double duty past the age of 70 — that is, to do duty as both a dis-
trict judge handling a civil and criminal caseload and also to preside as
an administrative judge over Federal litigation.
In the 18 years since that statute was first passed, both facets of a
chief judge's duty — namely, presiding over Federal trials and also
administering a court — have become much more complicated, due,
No. 1, just to the sheer increase in the number of cases, both civil and
criminal, that have been filed in the U.S. courts, and even more impor-
tantly, because of the complexity of those cases.
Criminal law has changed significantly over that 18-year period
and has become significantly more complex. The civil cases that are
brought have also become more complex, so that the original rationale
for that general rule is now underscored and emphasized by the sheer
increase in numbers and, more importantly, by the increase in com-
plexity of the kinds of cases that a Federal judge must preside over
and the kind of court he has to administer.
Mr. Child's testimony will present a practical example of the wis-
dom of this general rule enacted by Congress 18 years ago. There's
no doubt that in application a general rule like this, saying that a
judge cannot serve in both capacities past the age of 70, may, in cer-
tain circumstances, deprive the Government of the effective service
of a man who, past the age of 70, who can, in fact, effectively do both
jobs.
The Department of Justice submits that the examples that will be
given by Mr. Child, however, show us the other side of the picture
and show us the wisdom of this general rule, that in Judge Ritter's
case, he has demonstrated, certainly since the passage of that statute
and certainly since the time he passed the age of 70, that he cannot
perform both roles; namely, sit as a trial judge in complicated and
important Federal cases, both civil and criminal, and also administer
a court calendar.
So that now I will turn over to Mr. Child for him to present to
you examples of why Judge Ritter cannot perform both roles and
why this Congress should repeal the "grandfather clause" now that
it only affects Judge Ritter. Mr. Child.
37
STATEMENT OF RAMON M. CHILD, U.S. DISTRICT ATTORNEY,
SALT LAKE CITY, UTAH
Mr. Child, If it please this Committee and Honorable Chairman,
my statement is largely directed to criminal matters and is divided
into four areas : one, the manner in which Judge Ritter processes cases
through his court. In the central division of the United States Court
for the District of Utah there are no published rules of court.
Judge Ritter uses the ''trailing calendar" system with very little
advance notice to counsel of that calendar. During the last few years,
the number of trial calendars set up by the chief judge each year has
declined. And consequently, each trial calendar has contained a large
number of cases for trial.
On Friday, December 12, 1975, late in the afternoon, my office re-
ceived notice of a criminal trial calendar to commence at 10 o'clock
a.m. on Thursday, December 18th, 6 days before Christmas. On that
calendar, 23 cases had been set for trial. Three of the first four cases
were tax cases involving approximately 100 witnesses, many of whom
resided out of the State of Utah.
During this period of time in December, 1975, United Airlines was
on strike. Christmas holiday traffic aggravated the situation. Con-
sequently, on Monday, December 15th, I filed a motion with the court
requesting that we be given 21 days to prepare for that trial calendar
and informing the court of the tremendous difficulty we were having
in preparing and serving subpenaes and securing witnesses on such
short notice. Xevetheless, on Thursday, December 18th, Judge Ritter
held a call of that trial calendar.
Four cases were dismissed outright because the Government did
not have its witnesses present. All four of those cases are now on
appeal. In one of those cases, the court was informed by Government
counsel that the case could be ready by the time it was reached on the
following Monday. Notwithstanding the fact that this case was No.
20 on the calendar, the court stated, "The case is reached now," and
then dismissed it.
Judge Ritter required the Government to try four other criminal
cases on that calendar on the following day, Friday, December 19.
Sensing the mood of the court, defense counsel waived jury and all
four cases tried on the 19th were lost by the Government. Because jeop-
ardy attached in three of those cases, only one is on appeal.
Senator Burdick. May I ask a question at this point ? I don't want
to interrupt your train of thought, but I think it's important. Was
he acting as a chief judge then or just as a trial judge ?
Mr. Child. He was acting as the trial judge at that point. The other
cases on the trial calendar at that time the court reluctantly set over
to January 5. There are numerous other examples. In May of 1974,
19 cases were set on a trial calendar with only 7 days notice. In No-
vember of 1974, 31 cases were set on a trailing calendar with only 3
days notice. In October of 1975, 30 cases were set on a trailing cal-
endar with zero days notice to my office. In November of 1975, 23
cases were set on a trailing calendar with 6 days notice. And in Janu-
ary of 1976, 14 cases were set with 2 days notice.
Often when the cases are not ready because of the inability of the
Government to secure attendance of witnesses within the time notice,
38
the cases are dismissed. Judge Eitter does not hold rule days — that
is, days upon which arraignments will be taken or motions heard in
cases on a regular or even a frequent basis.
The last criminal rule day in the district of Utah was January 16
of this year. There are presently 32 cases involving 46 defendants
awaiting arraignment in the central division. Of these defendants,
23 have either been arrested or served with summons and bound over
for arraignment after preliminary hearing before the magistrate.
However, none of these 23 defendants has yet been formally charged
in an information or indictment.
No indictment has been possible during this period because of the
chief judge's refusal to convene a grand jury. No information could
be filed or pleas taken during this period because of the chief judge's
failure to schedule court time for the conducting of such business.
Furthermore, at present 23 defendants have been formally charged
by indictment or information and await arraignment in the central
division.
In 21 of these 23 instances, the chief judge has failed to meet the
specific 30-day time requirement of section 2(a) of the interim plan
for achieving prompt disposition of criminal cases in the district
of Utah, which plan he and the associate judge adopted pursuant to
the requirements of rule 50(b), Federal rules of criminal procedure.
The judge's usual practice is to defer hearing motions to dismiss
or suppress until the time of trial. That means he defers a ruling on a
motion until after a jury has been picked and sworn, thereby causing
jeopardy to attach and thus depriving the government of its right to
appeal an adverse ruling.
The chief judge made a statement in a recent case wherein he ad-
mitted that his purpose in delaying pretrial motions until after the
jury was sworn was to make certain that jeopardy attached so the
government couldn't appeal. The instance is cited in my statement.
I'll pass over it.
Frequently the rights of those defendants who are in custody have
been abused by the delays caused by the court. One of the more
serious problems faced by the U.S. Office during the term of William
Lockhart, my predecessor, was the inability to bring in custody de-
fendants to trial before Chief Judge Ritter within a reasonable time
after arrest.
The following three cases are used to demonstrate the problem.
One Rudy and one Kirkendahl were both charged with armed bank
robbery involving separate incidents. Rudy was arrested on Septem-
ber 23, 1974, and Kirkendahl was arrested December 1, 1974. Karl
Stock Smith was incarcerated on August 28, 1974, after being charged
in an interstate bank fraud and he, too, was being held in custody
under a high bond.
Despite repeated oral requests from U.S. Attorney Lockhart,
Judge Ritter did not set these cases for trial until March 3. 1975,
at which time he set all three cases for trial on the same day, giving
the Government only 1 working day notice.
Defendant Rudy spent 6 months in jail awaiting his trial, while
defendant Kirkendahl waited more than 4 months. Defendant Smith
was convicted on March 11, 1975, after waiting 7 months in jail. Judge
Ritter also postponed Smith's sentencing until July 11, 1975, and
39
accordingly he spent the better part of 1 year before his case was
concluded.
I move to point 2 now : failure of the court to fully utilize the U.S.
Magistrate. In the District Court of Utah, the U.S. Magistrate
has been utilized very little. Several Federal agencies have made
requests to the court that the U.S. Magistrate be utilized for the
enforcement of minor offenses, but their requests have not been
granted.
Since 1970, each U.S. Attorney has made similar requests of the
court. Recently, I also made a request that the U.S. Magis-
trate be more fully utilized for the effective enforcement of minor
offenses. That request was supported by letters of request and affi-
davits of need from the heads of nine Federal agencies in the State of
Utah.
Based upon past history, however, I have little hope that this peti-
tion will be granted, notwithstanding the fact that I know that the
second judge in the district is strongly in favor of it.
Although he refuses to delegate trial authority. Chief Judge Ritter
resists hearing minor offenses and abuses the government prosecutor
when such cases are filed with the court. For example, in March of
1975 under the tenure of William Lockhart, a man charged with the
petty offense of illegal entrance on a military reservation appeared
before Judge Ritter for arraignment.
The following excerpts from the transcript of that proceeding
demonstrate the judge's attitude toward handling petty offenses in
the district court. After some preliminaries, the court says, "What
kind of petty offense was it? We don't entertain those petty offenses
up there on the reservation. How did that one get in here?"
And again, the court said, "I don't think this case will last very
quick. I think it will go out the door with wheels under it. . . ." The
clerk then is asked to take the plea and he says, "How do you plead
to the information, guilty or not guilty?" And the defendant says,
"Not guilty." And the court then responds : "Good. That's what you
should do. There's a question whether I'm going to handle it or not.
I may throw it out. I don't take these petty offenses, you see. The mili-
tary up there ought to run that reservation. They ought to run it.
And when they find out they can't run it, at that point, particularly
with respect to traffic offenses, they can't manage the traffic up there,
so they want me to be a traffic policeman, traffic examiner, and dish
out $1.50 fines, that sort of business. I'm not going to do it. It looks to
me like this thing ought not to be here."
The prosecutor then tried to explain to the court that this was a
complicated situation where the man had been given a bar letter,
after he had been caught selling narcotics on the military reservation,
and in violation of the bar letter had again come on the reservation.
And so the prosecutor said, "I felt, your honor, that the petty offense
justified the court's attention under the circumstances."
And the court responded: "The plea is not guilty. That's a proper
plea in this case and we'll look at your cards when we get it on the
calendar. And I think chances are that you won't have a big enough
hand to stay in the game."
When this case came before the court for trial, he allowed the prose-
cutor to put on his case and then dismissed it. The need for an effec-
40
tive method of handling minor offenses in the district of Utah is
readily apparent. Utah has within its boundaries 5 Indian reserva-
tions or areas of allotment, 5 major military installations, many
Federal buildings, including a veteran's hospital, 5 national parks,
and at least 10 other national monuments or recreation areas and 8
national forests.
In recent review of the need for better enforcement of the minor
offenses in the district of Utah, it was disclosed : First, there is pres-
ently no way of enforcing minor traffic and parking infractions at
Federal buildings and facilities; second, in spite of some enforcement
of minor offenses in tribal courts, many minor violations of Federal
laws occurring within Indian reservations have gone without sanc-
tion; third, within a 1-year period, it is estimated that over 2,500
petty offense violations occur within the national parks and monu-
ments in the State of Utah ; fourth, within the national forests it is
estimated that over 250 cases in 1975 w^ould have been handled through
a Federal magistrate if that forum had been available; and fifth,
within the military installations in Utah, many traffic offenses com-
mitted by nonmilitary personnel and minor offenses involving tres-
pass or theft from the Government are committed without any law
enforcement sanction because of the lack of an appropriate forum.
For such offenses, the enforcement mechanism used in all of the
surrounding States around Utah is that of a fine or forfeiture of
collateral. Such enforcement mechanisms are implemented with the
assistance of the U.S. magistrate who oversees the collection of fines
and is able to try cases involving minor offenses when such trial is
necessary.
In the district of Utah, no such system exists because Chief Judge
Hitter has failed to delegate minor offense trial jurisdiction to the
magistrate or to institute a bail forfeiture system.
I pass now to point three of my four points, having to do with the
manner in which Judge Ritter has administered grand juries in the
district of Utah over the last 5 years and has thus hampered law
enforcement.
At the present time, there is in the 10th Circuit Court of Appeals
a petition for writ of mandamus to require Chief Judge Ritter to
convene a grand jury for full term and to prohibit Judge Ritter from
unlawfully interfering with or discharging the grand jury once it is
convened.
This action was filed Avith the court of appeals on April 20, 1976.
On April 21, the court of appeals ordered Judge Ritter to respond
to the Government's mandamus action by April 26. On April 22,
Judge Ritter issued an order for the empaneling of a grand jury and
it was empaneled on May 10. The Court of Appeals for the 10th
Circuit has retained jurisdiction on the subject of whether there might
be interference with that grand jury.
During the last 5 years, a grand jury in the central division of the
district of Utah has met to investigate crime on only 57 days During
1971, a grand jury sat for 5 days. During 1972, a grand jury was con-
vened only 1 day. A grand jury was not convened at all during 1973.
During 1974, a grand jury sat only 15 days. During 1975, a grand jury
sat for only 36 days.
Chief Judge Ritter has refused to convene a grand jury from De-
cember 4, 1975, until the filing of the petition for writ of mandamus
41
and this situation existed even thoug:h diirino; that period four de-
fendants refused to waive their constitutional right to indictment.
And in court when they are arraigned, he will try to press them to
waive that right and criticize their attorneys for not so advising them.
Because of the lack of a grand jury in the central division of the
district of Utah, these four defendants could not be indicted nor
prosecuted. On January 23 of this year, pursuant to rule 6 of the
Federal Rules of Criminal Procedure, I filed a motion requesting that
a grand jury be empaneled.
That motion was ignored by the court until finally I filed the man-
damus proceeding. Such conduct on the part of Judge Ritter is part
of a long, but consistent history of actions taken by the judge which
have frustrated the grand jury process.
On Febniary 10, 1975, at the request of U.S. Attorney William Lock-
hart, the Court convened a grand jury. Shortly thereafter, the Anti-
trust Division of the U.S. Department of Justice and the U.S. At-
torney's Office commenced presenting cases to that grand jury. Some-
time during the early part of April of 1975. Judge Ritter told U.S.
Attorney Lockhart that the court was going to discharge the grand
jury.
In order to salvage the work of that grand jui-y, which was then
ongonig, Mr. Lockhart agreed to the entry of an order by the court
limiting the function and scope of the grand jury. On April 25, 1975,
Judge Ritter executed an order which limited the matters the Govern-
ment could present to the grand jury to four specified investigations,
including two antitrust investigations.
Thereafter, the judge often threatened in open court to discharge the
grand jury. The antitrust investigation was halted when Judge Ritter
refused to sign immunity orders and when he ordered that other im-
munity orders, signed, but not yet served, be returned to him.
The testimony of the 14 witnesses covered by the immunity orders
was essential to the grand jury's continued investigation into price
fixing in the District of Utah. The grand jury had already heard over
10 days of testimony from over 20 witnesses. Government attorneys
assisting the grand jury had expended approximately 2,000 houi"S
working on that investigation, including analyses of more than 250,000
subpenaed documents. The United States filed a petition for writ of
mandamus with the 10th Circuit Court of Appeals on November 25
seeking an order to require Judge Ritter to sign the immunity orders.
By reason of the court's declared intention to dismiss the grand jury,
on December 4, 1975, I filed a motion requesting the grand jury be
allowed to continue to sit to conclude its business.
That motion also asked the court to lift the restrictions imposed in
the April 25 limiting order. Xotwithstanding the plea made by the
Government, and over the protests of the grand jury foreman. Judge
Ritter discharged the grancl jury while it was still investigating fraud
and antitrust matters and while it still had over 8 months to serve.
Before convening a grand jury in 1974, the jud^e required the
U.S. Attorney to submit to the court a list of those individuals who
were to be investigated. Such conduct, together with the limitation
order of April 25, constitutes an interference with the functions of the
executive branch and with the processes of the grand jur3^
My final point is that Chief Judge Ritter uses his powers in a
manner adverse to the legitimate interests of the Federal Govern-
42
ment. A review of all of the criminal cases coming before Judge Ritter
between the dates of November 7, 1975 and January 30, 1976, reveals
the following.
One, a total of 22 cases were listed for trial. This does not include
cases where pleas of guilty were entered. Two, out of those 22 cases,
the Government prevailed in only two cases — 10 percent. The same
prosecutorial staff of my office experiences approximately 90 percent
success in the northern division of the Utah District, which is cer-
tainly in keeping with the national average.
Three, in two of the remaining cases, the Government was able to
obtain a stay of the proceedings in the Court of Appeals so that
mandamus actions against Judge Ritter could be filed, but otherwise
those two would have been dismissed.
And as a result of that 22-case experience, two mandamus actions
and eight appeals have been approved by the Department of Justice
and are now pending in the Court of Appeals. The extra workload
caused by this large amount of appellate work necessarily affects the
efficiency and quality of the important work assigned to the Office
of the United States Attorney.
And I wish to sincerely thank this committee for giving me the
opportunity to present the picture.
Senator Burdick. Well, thank you very much for your contribution
this morning.
Mr. Child. Mr. O'Brien would like to formally submit his written
statement rather than read it.
Senator Burdick. It will be received for the record.
[The above referred to statement follows :]
Statement of James D. O'Brien, Acting Deputy Assistant Attorney General,
Tax Division, Department of Justice Before the Subcommittee on Improve-
ments IN Judicial Machinery, Senate Judiciary Committee on S. 1130
A BILL TO amend THE ACT OF AUGUST 6, 1958 (72 STAT. 497), RELATING TO SERVICE
AS CHIEF JUDGE OF A UNITED STATES DISTRICT COURT. ON MAY 18, 1976
My name is James Dewey O'Brien and I am an Acting Deputy Assistant
Attorney General of the Tax Division. Department of Justice. In that capacity,
one of the Sections under my supervision is the Criminal Section of the Tax
Division in which I entered on duty as a trial attorney almost 24 years ago.
I welcome the opportunity to appear before you to recommend the enactment
of S. 1130 to amend an Act of August 6, 1958 (72 Stat. 497).
As you know, the August 6, 1958, Act provides, generally, that the Chief Judge
of a multi-judge district shall not retain that post beyond tiie age of 70 years.
However, the portion of that Act which would be stricken by S. 1130 excepted
the chief judge of any two-judge district so long as that chief judge sitting at
the date of enactment continued in office. Only the Chief Judge of the United
States District Court for Utah is presently within that exception.
Almost two decades have passed since Congress concluded that senior judges
over 70 years of age should be relieved of the administrative burdens of the
court. This conclusion was based on many years of experience, and events since
that date have proved the wisdom of that general rule. We believe that rule
should be uniform throughout the United States, for, whatever the reasons that
led to the creation of this exception many years aero, the time has come when it
is eminently clear that it is in the interests of the uniform administration of
the laws that this exception be eliminated. The Court of Appeals for the Tenth
Circuit has attempted to limit the problems existing in the United States
District Court for the District of Utah by creating a new Division and restricting
the authority of the Chief Judge of the District in the assignment and handling
of cases in that Division. For the history of that effort, see Utah-Idaho Sugar
43
Company v. Ritter, 461 F. 2d 1100 (C.A. 10, 1972). But that partial solution gives
no relief at all to the remaining Division presided over by the Chief Judge.
I am acutely aware of the seriousness that does, and should, attend a recom-
mendation from a representative of the Executive Branch of Government which
would affect the status of an incumbent federal judge. The Legislative Branch
should, and will, I am sure, view these representations with some degree of
skepticism. But, at the same time, we trust that, if this Committee has any
doubt about the reality and extent of the problem or any of the statements
outlined hereinafter, it will take appropriate action to assure itself of the facts.
We are ready at all times to cooperate with this Committee toward that end.
I also wish your Committee to understand that the following presentation is
based primarily on representations to the Tax Division by successive United
States Attorneys and their assistants and by attorneys of our own staff who
have either .supervised or tried tax cases in the District of Utah. However, most
of the events related hereinafter happened in open court or are reported in pub-
lished cases.
The matters complained of may be summarized under the following categories :
(1) the refusal to call grand juries for extended periods of time, resulting in
the running of the statute of limitations in criminal tax cases and attempts by
the court to determine what cases will be presented :
(2) a continued pattern of dismissal of indictments after the trial has com-
menced, jeopardy has attached, and the Government is without recourse by
appeal or otherwise ;
(3) the refusal to permit the Government to put in admissible evidence;
(4) refusal to instruct the jury in accordance with longstanding principles
of law ;
(5) setting large numbers of cases for trial on the same date and refusing
to indicate in what order the cases will be called for actual trial, setting multiple
hearings on short notice and reaching decisions without permitting arguaient ;
and
(6) last, but not least, for the dignity of a court and the treatment of its
oflScers are of prime importance to our judicial system : an extended pattern
of mistreatment in open court of United States Attorneys, Assistant United
States Attorney.s, and other attorneys for the Government, in repeated instances,
threatening them with contempt and excluding them from the courtroom.
(1) As early as 1968 the then United States Attorney reported to us that the
Chief Judge had refused a grand jury for approximately one year and had
denied specific requests to do so. The refusal to call grand juries in 1973 with
15 months elapsing between grand juries resulted In the running of the statute
of limitations in criminal tax cases. A former United States Attorney, now
deceased, reported to us by letter that the Chief Judge had ordered him not to
present certain cases to the grand jury.
(2) The Supreme Court held in United States v. Jom, 400 U.S. 470 (1971),
that, where the court dismissed the information after the trial commenced,
the case could not be retried even though (page 487) the trial judge "made no
effort to exercise sound discretion." In that criminal tax case, the Chief Justice,
in a concurring opinion, characterized the actions of the Chief Judge of the
District of Utah as repre.senting a "i)lain frustration of the right to have this
case tried, attributable solel.^ to the conduct of the trial judge." The dissenting
Justices said (p. 488) that they could not agree that when a trial judge abuses
his discretion in declaring a mistrial on his own motion that a trial on the merits
is foreclosed.
Since Jom, there has been a pattern of dismissal of indictments and infor-
mations after the commencement of trial and there is no recourse for the Govern-
ment luider present law. In January 1976, in United States v. Cloyd U. Hepworth
(Cr. 75-102), the Government sought to introduce evidence of the usual type
in criminal tax cases. The court refused to admit the evidence and then dis-
missed the indictment on the ground of the Government's failure to produce
evidence. The Government, of course, had no recourse. No written order was
issued in the case. Recently, after a nontax ca.se had been disposed of in similar
fashion, counsel for two other defendants moved for dismis.sal of the indict-
ments as to their clients on the grounds that the charges were similar to those
just dismissed. The United States .Attorney's office advises us that the Chief
Judge then took these attorneys to task, stating, in effect, that it was the
practice of the court to dismiss the indictment after the case goes to trial so
that the case i.-: fully disposed of. If this statement was intended to convey what
44
it appears to mean, then the policy of dismissal of indictments after the com-
mencement of trial is not merely to be inferred from a pattern of events, but
is a professed policy.
(3) and (4). In addition to the Hepworth case, the court did not allow in 1973
clearly admissible evidence in United States v. Stout (Cr. 43-72) and refused
to give the standard instructions in criminal tax cases. In United States v.
Corbett (Cr. 75-75), another criminal tax ca.se, the court refused to give the
usual instructions or, indeed, any instructions other than to tell the jury that
the defendant had appeared to rely on another person. In both cases, the lack
of the usual instructions and comments to the jury weighted toward the de-
fendants resulted, in the views of the prosecutors, in the acquittals.
(5) It is repeatedly reported to us by the Office of the United States Attorney
and attorneys of our own Division that as many as 40 cases are set for trial
on the same date without stating the order in which the cases will be tried ; that
if the parties are not ready to go to trial, the case is sometimes dismissed or
the parties are forced to go to trial without key witnesses. This, of course,
takes up the time of attorneys for both sides and incurs additional costs by
having the witnesses appear and reappear. More seriously, it interferes with the
orderly administration of justice. On occasion, hearings are set with very little
notice, with resettings, then counsel is sometimes given no chance to be heard
after multiple appearances. This has been particularly burdensome on Govern-
ment attorneys travelling from Washington, D.C., to Utah.
(6) Successive United States Attorneys have reported to us that the Chief
Judge has barred certain Assistant United States Attorneys from his courtroom.
At times between the years 1967 and 1973, the then United States Attorneys re-
ported that two of their four assistants were barred at times, and that this
caused a great hardship on a small office. Successive United States Attorneys,
their Assistants, and other Government attorneys have reported that the Chief
Judge used abusive and threatening language to them in open court.
The effect of the combined course of conduct described above has been to
prevent the Government from carrying out its duty to enforce the criminal tax
laws fairly and effectively in the Central Division of the District of Utah presided
over by the Chief Judge. In connection with our supervision of criminal tax
cases, it was brought to our attention that the Chief Judge had dismissed mail
fraud charges against Thomas Dee Stoker fCr. 86-70, USDC Utah) and issued a
restraining order against prosecution of that individual in Wyoming on similar
but different charges (Cr. 8543, USDC Wyo.) after the defendant brought a pro-
ceeding back in Utah. The United States District Court for the District of
Wyoming ordered the trial to proceed and the defendant was convicted. The
Chief Judge of the District Court for Utah then issued an order to the United
States Attorneys for Utah and Wyoming to show cause why they should not be
held in contempt. We understand the show cause matter was not pursued.
It should be noted that this pattern of conduct has extended through several
administrations, indicating that politics and personalities have nothing at all
to do with the problem.
The Government's difficulties before the Chief Judge of the United States
District Court for the District of Utah have by no means been limited to criminal
cases. For example, in one civil tax case, the Chief Judge was reversed five
times by the Court of Appeals for the Tenth Circuit (Portland Cement Company
of Utah v. United States, 293 F. 2d 826 ; 315 F. 2d 169 ; 338 F. 2d 798 ; 378 F. 2d
91; 412 F. 2d 894).
The Court of Appeals for the Tenth Circuit, as shown in the Utah-Idaho Sugar
Company case cited above, has done what it can to limit the problem geographi-
cally. We strongly urge the passage of S. 1130 as a solution to many of the
problems in the United States District Court for Utah. Even if this .situation
did not exist, we would recommend the enactment of S. 1130 as removing an
outmoded exception to the general rule, the wisdom of which has been demon-
strated in the course of almost two decade : that judges over 70 years of age should
be relieved of the administrative burdens of the United States District Courts
and the United States Courts of Appeals.
Thank you for permitting me to submit this statement.
Mr. O'Briex. Copies have been submitted previously.
Mr. Child. Mr. Chairman, my reading of my statement deleted many
parts and I hope the entire statement is received.
45
Senator Burdick. Your full statement will be received in the record.
]Mr. Child. Thank you.
[The above referred to statement with appendixes follows :]
Statement of Ramon M. Child, United States Attorney fob the District of
Utah to the Sub-Committee on Improvements in Judicial Machinery, of the
Committee on the Judiciary of the United States Senate
It is not a pleasant task to criticize the work of an important man ; however, I
have been requested to briefly outline for this sub-committee the problems the
United States Government, and in particular the Department of Justice, must
face because of the manner in which the Honorable Willis W. Ritter, Chief Judge
of the District of Utah, administers his court and cases. My statement is largely
directed to criminal matters and is divided into four areas: (1) the methods
utilized by the Chief Judge to pi'ocess his cases through court and resulting de-
lays ; (2) the failure of the Chief Judge to implement a magistrate system which
would iiermit the magistrate to try minor ofCenses and to establish a collateral
system ; ( 3 ) a description of the way in which the Chief Judge has administered
grand juries over the last five years ; and (4) a brief description of the effects of
hostility demonstrated by the Chief Judge towards cases in which the United
States is a party.
I. the manner in which judge ritter processes the cases through his coubt
A. Calendaring of Criminal Cases for Trial
In the Central Division of the United States Court for the District of Utah
there are no published Rules of Court. Chief Judge Ritter does not set criminal
cases for trial at the time of arraignment nor does he give the usual 30 to 60 days
notice. The Chief Judge rarely sets less than 20 cases for trial on any one calen-
dar. That is, he uses the •trailing calendar" system.
During the last few years the number of trial calendars set up by the Chief
Judge each year has declined. Consequently each trial calendar has contained a
large number of cases for trial. It becomes an almost impossible task to prepare
20 to 30 criminal cases for trial when the government is given only a week's no-
tice and often only two or three days" notice.
Because a large number of criminal eases were backlogged for trial, on Au-
gust 1, 1975, I sent a memorandum to Judge Ritter advising him that there were
36 criminal cases awaiting trial and eleven criminal cases awaiting arraignment,
including at least two important stock fraud cases (Exhibit 1). Upon inquiry
from the Chief Judge as to when the government could be ready to try the two
stock fraud cases, a subsequent memorandum was sent to the Judge on Sep-
tember 17, 1975, wherein I informed the court we could be prepared to try the
cases on October 6, 1975 (Exhibit 2). Prior to that I had informed the court that
in view of the large number of witnesses in the stock fraud cases we would need
at least two or three weeks lead time to assemble those cases for trial. There
were aproximately 130 witnesses involved in three of those stock fraud cases. On
September 22, 1975. at 5 :15 p.m. I received a memorandum from Chief Judge
Ritter which stated that the two stock fraud cases would be tried commencing
September 29, 1975, at 10 :00 a.m. (Exhibit 3) . It is of significance that these cases
were being tried by Fraud Section attorneys who were residing in Washington,
D.C.
On Friday, December 12, 1975, late in the afternoon, my office received notice
of a criminal trial calendar to commence at 10 :00 a.m. on Thursday, December
18, 1975 ( Exhibit 4 ) . On that calendar 23 cases had been set for trial. Three of
the first four cases were tax cases involving approximately 100 witnesses, many
of whom resided out of the state. During this period of time in December 1975,
United Air Lines was on strike, which created difficulty in getting people from
one place to the other in this country. Christmas holiday traffic aggravated the
situation as well. Consequently, on Monday, December 15, 1975, I filed a motion
with the court requesting that we be given 21 days to prepare for that trial
calendar and informing the court of the tremendous difficulty we would have in
preparing and serving subpoenas and in securing witnesses on such short
notice (Exhibit 5). Nevertheless, on Thursday. December 18 Judge Ritter held
a call of the trial calendar. We had been able to get ready on only a couple of
cases. Four cases were dismissed outright because the government did not
78-678 O - 77 - 4
46
have its witnesses present (Exhibit 6). All four of those cases are now on
appeal. In one of those cases the court was informed by government counsel
that the case could be ready by the time it was reached on the following Mon-
day. Notwithstanding the fact that this case was number 20 on the calendar
the court stated: "The case is reached now," and then dismissed it (Exhibit
7). Judge Ritter required the government to try four other criminal cases on
that calendar on Friday, the 19th of December. Sensing the mood of the court
defense counsel waived jury, and all four cases tried on the 19th were lost bv
the government. Because jeopardy attached in three of those cases, only one is
on appeal. The other cases on the trial calendar the court reluctantly set over
to January 5.
There are numerous other similar examples of such administration For
example, on January 12, 1976, we received notice of a 14-case calendar to be
tried commencing January 14, 1976 (Exhibit 8). On November 14 1975 the
government received notice of a 23-case trial calendar to commence November
.^0, 1975 (Exhibit 9). On October 21, 1975, the government received notice that
a 30-case calendar was to commence October 21, 1975 (Exhibit 10). On November
1, 1974, the government received a calendar which contained 31 criminal cases
to commence on November 4, 1974 (Exhibit 11). On Mav 21, 1974, the government
received a criminal calendar containing 19 cases to commence on Mav 28
1974 (Exhibit 12). '
Often when the cases are not ready because of the inability of the govern-
ment to secure attendance of witnesses within the time noticed, the cases are
dismissed. A typical example of this was the case of United States v Will
Henry Savage, CK-75-26. The case was noticed October 20, 1975, for trial on
October 21, 1975 (Exhibit 13). The government filed a motion for continuance
which Chief Judge Ritter ignored (Exhibit 14). Judge Ritter dismissed the
case on October 22, 1975, because the government had not been able to locate
Its witnesses (Exhibit 15). I have a staff of six assistants, but on a 20 to 30-case
calendar, often we are talking upwards of 200 to 400 witneses to be subpoenaed
and secured. Moreover, the attorneys need time to prepare their cases. Many
cases, because of their complexity, merit definite trial dates. While I recognize
that trailing calendars are used in some other courts, they are not used with
such short notice. Further, most courts do not sandwich complicated stock and
tax fraud cases in the middle of a trailing calendar as does Judge Ritter. You
can perhaps recognize the difficulty in trying a complicated tax fraud case
involving as many as one hundred witnesses in the middle of a calendar where
that same attorney is required to try drug cases, theft from interstate ship-
ment cases, and cases involving violence on an Indian Reservation.
B. Law and Motion Days
Judge Ritter does not hold rule days at which time defendants are arraigned
on a regular or even frequent basis. The last criminal rule day in the District
of Utah was January 16, 1976.
It is axiomatic that effective administration of criminal justice demands
that court machinery function swiftly. The present state of the Central Divi-
sion criminal calendar is evidence of the prejudice to both the defendant and
the government caused by delays in the calendaring of cases
There are presently 32 cases involving 46 defendants awaiting arraignment
in the Central Division. Of these defendants, 23 have either been arrested or
served with summons and bound over for arraignment after preliminary hear-
ing before the magistrate (Exhibit 16). However, none of these 23 defendants
in-^-^'!u ,^ formally charged in an information or indictment. As of May 10,
19 (b, the elapsed time since arrest or service of summons in these 23 instances
ranged from 26 to 150 days. The average is 99 days. (Twenty-one of these 23
cases exceed the 60-day time limit for filing an indictment or information under
the Speedy Tnal Act 18 U.S.C. § 8161(b). However, § 3161(b) does not take
ettect until July 1, 19 < 6, and the Interim Plan for Prompt Disposition of Criminal
cases in the District of Utah contains no interim time limit for filing an indict-
T?,^ or information.) No indictment was possible during this period because
ot the Chief Judge s refusal to convene a grand jury. No information could be
filed or pleas taken during this period because of the Chief Judge's failure to
schedule court time for the conducting of such business.
Furthermore, at present 23 defendants have been formally charged by indict-
ment or information and await arraignment in the Central Division They have
^?fp, iL^'^^^iHS arraignment for a period ranging from 26 to 158 days (Ex-
hibit 16a). The average wait as of May 10, 1976, was 66 days. This is a period of
47
time in which these defendants have had no opportunity to plead not guilty and
defend the charge or plead guilty and bring the matter to a swift conclusion.
In 21 of these 23 instances, the Chief Judge has failed fro meet the specific time
requirement of § 2(a) of the Interim Plan for Achieving Prompt Disposition of
Criminal Cases in the District of Utah, which he and the Associate Judge
adopted pursuant to the requirements of Rule 50(b), Federal Rules of Criminal
Procedure. Section 2(a) of the Court's plan requires that a defendant musit be
arraigned within 30 days from the date the information or indictment is filed.
When a rule day is established a large number of cases appear on the rule
day calendar. This limits the amount of time that the Judge can spend with
each case. This is a particular problem when a motion to suppress evidence or
when a motion to dismiss has been filed by defense counsel. The Judge's usual
practice is to defer hearing motions to dismiss or suppress until the time of
trial. That means he defers a ruling on the motion until after a jury has been
picked and sworn, thereby causing jeopardy to attach and thus depriving the
government of its right to appeal an adverse ruling. In point of fact, the Chief
Judge made a statement in a particular case wherein he admitted that his
purpose in delaying pretrial motions until after a jury was sworn, was to make
certain that jeopardy attached so the government couldn't appeal (Exhibit 17).
The Chief Judge had just ruled against the government in a case involving a
crime of violence on an Indian Reservation and dismissed the case. Defense
counsel, in a following and similar case, to wit : United States v. Gerald
Moitntainlion and Ronnie Appaicoo, CR-75-72, was observing in the court-
room. He addressed the Court and pressed to have his similar pretrial motion
heard before the jury was picked :
The Court. You are not representing your client very good. You are overlooking
smething that a practical man ought to think about. Defendant in the preceding
case ivas in jeopardy.
Defense Counsel. I recognize that.
The Court. He was confronting a jury. Now you are pushing your luck here. If
I rule on this motion before you confront a jury and that constitutional question
is litigated for the next ten years and goes up to the Supreme Court of the United
States and in the meantime the government amends, you have done your client
a very great disservice, because there is no bar to him being prosecuted.
Defense Counsel. Well, that is a possibility, Your Honor.
The Court. It is not only a possibility. That is what will happen. A'otf, / have
teen trying to handle all these cases on this calendar by having a jury in the
box there and not listening to your arguments about anything. You push in
here now at a time when the motion isn't even set down for argument, and you
have got your client in a fix where he may be twice tried for this thing. Now,
that is poor legal representation from my point of view, and I am going to do
what I can to protect him against his counsel, and we will just keep that right
where it is and get a jury for you one of these daj's, and when we get the matter
up before the jury we will get far enough down the way with the evidence to
see what is involved and then we will entertain your motion. I don't want to be
trying these cases again. I am interested in the court docket as much as I am the
Indian boy, but he ought to have the benefit of double jeopardy defense. If he
is prosecuted once that ought to be enough. That will be all.
Regarding this particular problem, the Department of Justice has filed with
the Tenth Circuit Court of Appeals a petition for writ of mandamus requiring
the Chief Judge to hear pretrial motions in accordance with Rule 12(e) of the
Federal Rules of Criminal Procedure. Rule 12(e) specifically provides : "A motion
made before trial shall he determined before trial unless the court, for good
cause, orders that it be deferred for determination at the trial of the general
issue or until after verdict, but no such determination shall be deferred if a
party's right to appeal is adversely affected. . . ." The Tenth Circuit has ordered
Judge Ritter to respond to the government's petition for mandamus. To my
knowledge, the Chief Judge has not filed a response.
In the case I just cited to you the issue involved the constitutionality of an
act of Congress. Certainly the Court of Appeals should have the opportunity to
decide that. However, it was Judge Ritter's intention to deprive the government
of that opportunity.
Frequently the rights of those defendants who are in custody have been abused
by the delays caused by the court. One of the more serious problems faced by the
United States Attorney's Oflice during the term of William Lockhart was the
inability to bring in-custody defendants to trial before Chief Judge Ritter within
48
a reasonable time after arrest. The following three cases are used to demonstrate
the problem.
Samuel Geist Rudy and Donald Devon Kirkendahl were both charged with
armed bank robbery involving separate incidents. Rudy was arrested on Sep-
tember 23, 1974, and Kirkendahl was arrested December 1, 1974. Both men were
held in custody under high bond because of the seriousness of their crimes and
their pa.st criminal records. Karl Stock Smith was incarcerated on August 28,
1974, after being charged in an interstate bank fraud scheme. He, too, was held
in eustdy under high bond because of his criminal record and other considera-
tions. Despite repeated oral requests from United States Attorney Lockhart,
Judge Ritter did not set these cases for trial until March 3, 1975, at which time
he set all three cases for trial on the same day, giving the government only one
working day notice. Defendant Rudy spent six months in jail awaiting his trial,
while defendant Kirkendahl waited more than four months. Defendant Smith
was convicted on March 1, 1975, after waiting seven months in jail. Judge Ritter
also postponed Smith's sentencing until July 11, 1975. Accordingly, Smith spent
nearly one year in the County Jail waiting for his case to be concluded.
Thus, absent appropriate written Rules of Practice and notwithstanding the
Interim Plan adopted by the Court, the administration of criminal justice in
the District of Utah is being frustrated by the practice followed by Chief Judge
Ritter in calendaring cases, holding rule days and ruling on motions in criminal
cases.
II. FAILURE TO FULLY UTILIZE THE U.S. MAGISTRATE
In the District of Utah, the United States Magistrate has been utilized very
little. Since 1968 U.S. Magistrates have been authorized by law to try and to
sentence persons who have committed petty and misdemeanor offenses when
the judges of the district have delegated such authority to the Magistrate. 18
U.S.C. § 3401. In every district except the Northern District of West Virginia
and the District of Utah such a delegation of authority is in existence.
In the District of Utah several federal agencies have made requests to the
Court that the U.S. Magistrate be utilized for the enforcement of minor
offenses, but their requests have not been granted. Since 1970 each U.S.
Attorney has made similar requests of the court. During the tenure of C. Nelson
Day, such a request was made on numerous occasions. During the tenure of
the Chief Judge's own interim appointee, William J. Lockhart, similar requests
were made. Mr. Lockhart tried unsuccessfully to persuade the court as to the
need for trial authority in the magistrate and a bail forfeiture system.
Recently I have also made a request that the U.S. Magistrate be more fully
utilized for the effective enforcement of minor offenses. Based upon past history
I have little hope that this petition will be granted.
In delegating minor offense jurisdiction to the U.S. Magistrate, a concurrence
of a majority of the judges of the district court is required. Absent such a
concurring majority, the decision is left to the Chief Judge. Thus, in the District
of Utah, where there are two federal judges, the favorable vote of the Chief
Judge is controlling for any decision to delegate minor offense jurisdiction to
the Magistrate. I am confident a different Chief Judge would effect these
reforms.
Absent the use of the U.S. Magistrate the only available forum for the
enforcement of minor federal offenses is that of the U.S. District Court. How-
ever, for a large part of the district, that forum is not realistically available
for enforcement because of Judge Ritter's attitude toward minor offenses.
Although he refuses to delegate trial authority. Chief Judge Ritter resists
hearing minor offenses and abuses the government prosecutor when such cases
are filed in his court. For example, in March of 1975, under the tenure of
William Lockhart, a man charged with the petty offense of illegal entrance on
a military reservation appeared before Judge Ritter for arraignment. The
following excerpts from a transcript of that proceeding demonstrate the Judge's
attitude toward handling petty offenses in the district court (Exhibit 19).
The Court. . . . What kind of petty offense was it? We don't entertain
those petty offenses up there on the reservation. How did that one get in here?
***** * *
The Court. I don't think this case will last very quick. I think it will go out
the door with wheels under it. . . .
49
The Clebk. How do you plead to the information, guilty or not guilty?
The Defendant. Not guilty.
The CouBT. Good. That's what you should do. There's a question whether
I'm going to handle it or not. I may throw it out. I don't take these petty
offenses, you see. The Military up there ought to run that reservation. They
ought to run it. And when they find out they can't run it, at that point, par-
ticularly with respect to traflSc offenses, they can't manage the traflSc up there,
so they want me to be a traffic policeman, traffic examiner, and dish out dollar-
and-a-half fines, that sort of business. I'm not going to do it. It looks to me
like this thing ought not to be here.
[The Pbosecutob]. I felt, your Honor, that the petty offense justified the
Court's attention under the circum.stances.
The CouET. The plea is not guilty. That's a proper plea in this case, and
we'll look at your cards when we get it on the calendar, and I think chances
are that you won't have a big enough hand to stay in the game.
When this case came before the court for trial, the Judge dismissed it after
hearing the government witnesses (Exhibit 20).
The need for an effective method of handling minor offenses in the District
of Utah is readily apparent. Utah has within its boundaries five Indian res-
ervations or areas of allotments involving exclusive federal jurisdiction ; five
major military installations ; and many federal buildings which all involve
the exclusive jurisdiction of the United States Government. There also exist
five National Parks and at least ten other National Monuments or Recreation
Areas where the federal government is charged with the responsibility of the
enforcement of regulations and petty offenses promulgated for the protection
and preservation of these scenic areas. In addition, there are eight National
Forests encompassing hundreds of thousands of acres within the State of Utah
where regulations for the protection of our natural resources and the people
who use the National Forests must be enforced.
A recent review of the need for better enforcement of minor offenses in the
District of Utah disclosed the following: (1) there is presently no way of
enforcing minor traffic and parking infractions at federal buildings and facilities ;
(2) in spite of some enforcement of minor offenses in tribal courts, many minor
violations of federal laws occurring within Indian Reservations have gone
without sanction; (3) within a one-year period it is estimated that over 2,500
petty offense violations occur within the National Parks and Monuments in
the State of Utah; (4) within the National Forests it is estimated that over
250 cases in 1975 would have been handled through a federal magistrate if
that forum had been available; and (5) within the military installations in
Utah, many traffic offenses committed by non-military i)ersonnel and minor
offenses involving trespass or theft from the government are committed without
any law enforcement sanction because of the lack of appropriate forum.
For such offenses as these, the enforcement mechanism used in surrounding
jurisdictions is that of a fine or forfeiture of collateral system. Such enforce-
ment mechanisms are implemented with the assistance of the U.S. Magistrate
who oversees the collection of fines and is able to try cases involving minor
offenses when such trial is necessary. In the District of Utah no such system
exists because Chief Judge Ritter has failed to delegate minor offense trial
jurisdiction to the Magistrate or to institute a bail forfeiture system.
The extent of the need for better utilization of the U.S. Magistrate as de-
scribed above has been documented by letters from nine heads of federal agencies
and affidavits from nine key federal law enforcement personnel. These documents
were appended to a petition to the judges of the district court in our most
recent effort to obtain a delegation of minor offense jurisdiction for the U.S.
Magistrate.
Without the effective use of the U.S. District Court as a forum for the en-
forcement of minor offenses, and without the appropriate delegation of authority
being made to the U.S. Magistrate, violations of federal laws and regulations
will continue to go unenforced in the District of Utah.
III. the manner in which judge ritteb has administebed gband jubies in the
DISTRICT OF UTAH OVER THE LAST FIVE YEARS HA.S GREATLY HAMPERED THE
ENFORCEMENT OF CRIMINAL LAWS IN THE DISTRICT OF UTAH
At the present time there is in the Tenth Circuit Court of Appeals a petition
for writ of mandamus to require Chief Judge Ritter to convene a grand jury for
50
full terms, and to prohibit Judge Ritter from unlawfully interfering with or
discharging the grand jury once convened. The specific relief requested is as
follows: (1) forthwith convene a regular grand jury; (2) follow the procedures
specified in Rule 6 of the Federal Rules of Criminal Procedure and 28 U.S.C.
§ 1861, et. seq. to effectuate the convening of a lawful grand jury ; (a) allow said
grand jury to sit for its full term unless both the United States Attorney and
the foreman agree to a dismissal on an earlier date or unless the grand jury by
a majority vote requests to be discharged on an earlier date; (4) allow saiu
grand jury to met and take evidence as often as it deems necessary and at regular
intervals; (5) allow said grand jury to investigate any matter it deems proper;
(6) allow the office of the United States Attorney for the District of Utah to
present to the grand jury such matters it deems necessary in the public interest;
and (7) sign and enforce all immunity orders obtained in accordance with the
provisions of Title 18. United States Code, § 6001, ct. seq.
This action was filed with the Court of Appeals on April 20, 1976. On April 21,
1976, the Court of Appeals ordered Judge Ritter to respond to the government's
mandamus action by April 26, 1976. On April 22, 1976, Judge Ritter issued an
order for the empanelling of a grand jury. A grand jury was empanelled on
May 10, 1976. The Court of Appeals for the Tenth Circuit has retained jurisdic-
tion over the Petition pending further developments. The facts which led to the
filing of the mandamus and which are pertinent inquiry are as follows.
During the last five years a grand jury in the Central Division of the District
of Utah met to investigate crime on only 57 days. During July of 1971 a grand
jury sat five days. During 1972 a grand jury was convened for only one day, and
that was because a defendant had been charged with a capital offense. A grand
jury was not convened at all during 1973. During 1974 a grand jury sat for only
15 days, and during 1975 a grand jury sat for only 36 days. Chief Judge Ritter
has refused to convene a grand jury from December 4, 1975, until the filing of the
petition for write of mandamus.
This situation existed even though four defendants refused to waive their
constitutional right to indictment (Exhibit 21). Because of the lack of a grand
jury in the Central Division of the District of Utah these four defendans could
not be indicted or prosecuted.
On January 23, 1976, pursuant to Rule 6 of the Federal Rules of Criminal
Procedure, I filed a motion requesting that a grand jury be empanelled (Exhibit
22). As grounds for this motion I emphasized: (1) the public interest requires
that certain matters be inquired into and that alleged criminal offenses be in-
vestigated to determine if indictments should issue; (2) that four defendants
had refused to waive indictment and required presentment; and (3) that it was
probable that the antitrust laws are being violated in the District of Utah and
that such probability required an investigation. As of the date the grand jury
mandamus action was filed. Chief Judge Ritter had ignored the fact that four
defendants had requested presentment and that the United States Attorney had
certified to the Court that the public interest required the convening of a grand
jury to inquire into violations of the United States Criminal Code which are oc-
curring in the Central Division of the District of Utah. Such conduct on the part
of Judge Ritter is part of a long, but consistent, history of actions taken by the
Judge which have frustrated the grand jury process.
On February 10, 1975, at the request of United States Attorney William
Lockhart, the court convened a grand jury. Shortly thereafter the Antitrust
Division of the United States Department of Justice and the United States At-
torney's office commenced presenting cases to that grand jury. Sometime during
the early part of April 1975, Judge Ritter told United States Attorney William
J. Lockhart that the court was going to discharge the grand jury. In order to
salvage the work of that grand jury, Mr. Lockhart agreed to the entry of an order
by the Court limiting the grand jury.
On April 25, 1975, Judge Ritter executed an order which limited the matters
the government could present to the grand jury to four specific investigations,
including two antitrust investigations (Exhibit 23). Thereafter the Jud-^e often
threatened in open court to discharge the grand jury. As noted in the April 25th
order, in one of the antitrust investigations over 250.000 documents had been
produced in compliance with grand jury subpoenas. In a fraud investigation
listed in that order, over 2,000 documents had been produced. The government
was not allowed to complete either of those investigations. The antitrust in-
vestigation was halted when Judge Ritter refused to sign immunity orders ob-
tained in compliance with § 6001, et. seq. of Title 18, United States Code, and
when he ordered that other immunity orders not yet served be returned to him.
51
This occurred in a meeting with the United States Attorney and an attorney
from the Antitrust Division of the Justice Department held in chambers on
August 26, 1975. Three immunity orders signed May 13, 1975, and one signed
J uly 28, 1975, were returned. The immunity orders either returned or not signed
totaled fifteen.
On August 28, 1975, I delivered a letter to Judge Ritter renewing the request
to issue immunity orders and asking him to reconsider his decision. That letter
was accompanied by a memorandum of law regarding the district court's lack
of discretion with respect to issuance of immunity orders as well as an applica-
tion by the United States Attorney for orders to compel testimony of 14 wit-
nesses, with the necessary authorizations of the Assistant Attorney General
attached.
On September 3, 1975, the United States was advised orally by the clerk that
Judge Ritter would not sign any orders compelling testimony. Another motion
to reconsider his decision was submitted to Judge Ritter on October 6, 1975, but
again he refused to sign.
The testimony of the 14 witnesses was essential to the grand jury's continued
investigation into price fixing in the District of Utah. The grand jury had already
heard over ten days of testimony from over 20 witnesses. Government attorneys
assisting the grand jury had expended approximately 2,000 hours working on this
investigation, including analysis of more than 250,000 subpoenaed documents.
The United States filed a petition for a writ of mandamus with the Tenth
Circuit Court of Appeals on November 25, 1975, seeking an order to require
Judge Ritter to sign the immunity orders.
On December 4, 1975, I filed a motion requesting the grand jury be allowed to
continue to sit to conclude its business (Exhibit 24). That motion also asked the
court to lift the restrictions imposed in the April 25, 1975, order. Notwithstand-
ing the plea made by the government and over the protest of the grand jury
foreman Judge Ritter discharged the grand jury while it was still investigating
fraud and antitrust matters.
In his report to the court, the grand jury foreman told Judge Ritter. "the
Grand Jury is currently considering other matters . . . but is not ready to report
on them at the present time . . . ." At the conclusion of the court's remarks dis-
charging the grand jury, the foreman asked if he could be heard, and stated :
"The Grand Jury would like to thank you for the opportunity that we have had
as serving as federal grand jurors in representing the people of the United States
of America ; but we are deeply concerned, and we have been for some time about
the fact of unfinished business.
"We haven't felt it a hardship, you know, to meet and to act in this capacity;
and we would like to at this time, with your permission, to complete the investi-
gations that still haven't completed." (emphasis added) (Exhibit 25)
Thereafter the court instructed the foreman, "We will do as I say." Thus, the
one grand jury that was convened in 1975, while it still had eight months to
tions because: (1) the court refused to sign some fifteen immunity orders; (2)
the court limited the matters the grand jury could investigate; and (3) the court
prematurely discharged the grand jury.
Before convening a grand jury in 1974 the Judge required the United States
Attorney to submit to the court a list of those individual^ who were to be investi-
gated (Exhibit 26). Such conduct, together with the limitation order of April 25,
1975, constitutes an interference with the functions of the Executive Branch.
The manner in which Judge Ritter has administered the grand jury system has
frustrated the enforcement of federal criminal law in the District of Utah.
IV. THE CHIEF JUDGE USES HIS POWEKS IN A MANNER AD\TERSE TO THE LEGITIMATE
INTERESTS OF THE FEDERAL GOVERNMENT
A review of all criminal cases coming before Judge Ritter between the dates
of November 7, 1975, and January 30, 1976, reveals the following: (1) a total
of 22 cases were listed for trial (does not include cases where pleas of guilty
were entered) ; (2) out of those 22 cases the government prevailed in only two
cases (the same prosecutorial staff experiences approximately 90 per cent success
in the Northern Division of the Utah District, which is more in keeping with
national averages) ; (3) in two of the remaining cases the government was able
to obtain a stay of the proceedings in the Court of Appeals so that mandamus
actions against Judge Ritter could be filed ; (4) in 17 cases Judge Ritter dismissed
charges against defendants; (5) in 2 cases verdicts of not guilty were returned
by juries after being erroneously or prejudicially instructed on the law by the
52
Judge- (6) in one case Judge Ritter directed judgment of acquittal after the
jury had returned a verdict of guilty; (7) approval for filing appeals or man-
damus actions were sought from the Department of Justice in 12 cases, with the
result that two mandamus actions and eight appeals were approved and are now
pending in the Court of Appeals. In adaition, two other mandamus actions
against Judge Ritter challenging the legality of his conduct are presently pending
in the Court of Appeals, as are 22 other criminal appellate matters.
The extra workload caused by this large amount of appellate work necessarily
affects the efficiency and quality of the important work assigned to our office.
August 1, 1975.
Re pending criminal cases
Hon. Willis W Rittee,
Chief Judge,
U.S. District Court.
Ramon M. Child,
U.S. Attorney.
I enclose for your information summary of 36 criminal cases awaiting trial as
of this date before the Utah District Court— Central Division.
On June 6, 1975 I supplied the Court with a similar inventory of criminal
matters awaiting trial. At that time there were 43 items on the calendar. The
Court arranged to have Judge Sherrill Halbert come to the District and as a
result of his efforts 16 matters on that calendar have been disposed of.
In addition to the 36 criminal cases now awaiting trial, there are also 11
criminal cases awaiting arraignment. A summary of those cases is also attached
hereto for the Court's information.
CR-74-99 (Buchanan) was cancelled by Judge Halbert. Forty-five witnesses
were served subpoenas and are on a standby basis. A jury was also selected.
The case could be disposed of in a two-day trial.
CR-74-52 (Rio DeOro) was also cancelled by Judge Halbert. More than sixty
witnesses were subpoenaed and are on a standby basis. This case will probably
require approximately two weeks to try.
Your advice and assistance would be appreciated.
Respectfully,
Ramon M. Child,
U.S. Attorney.
Septembeb 17, 1975.
Hon. Willis W. Rittee,
Chief Judge, U.S. District Court, District of Utah.
Kamon M. Child,
U.S. Attorney.
Pending Teial Calendae : At the Court's request I have contacted the Acting
Director of the Fraud Section of the Criminal Division, Department of Justice,
rpgarding pending criminal cases CR-74-52 and CR-74-53. I am informed that
the prosecutors assigned to these cases by the Department of Justice will be
prepared to proceed with trial, if the Court desires, on October 6, 1975 with
CR-74-52 to be tried commencing on that date and CR-74-53 to follow in turn.
There is a possibility that pleas may enter in CR-74-53 but the possibility of
pleas in CR-74-52 is considered remote.
If the Court directs trials to commence September 29, the prosecution will
make every attempt to be prepared. Such date would be the earliest possible
date in which prosecution could be prepared and it is felt the preparation would
be less than adequate for an efficient presentation of the Government's case. If
the Court must set trial date to commence prior to October 6, we would ap-
preciate a commencing date to be as close to October 6, as possible.
Thank you for your consideration in these matters.
OFFICE MEMOEANDUM — ^U.S. GOVEENMENT
Septembeb 22^ 1975.
To: Ramon M. Child, U.S. Attorney.
From : Willis W. Ritter, Chief Judge.
Subject : Pending Trial Calendar.
Receipt is acknowledged of your memo of September 17, 1975 regarding cases
CR-74-52 and CR-74-53. Case No. CR-74-52 (United States y. Rio De Oro
53
Mining Co., et al.) is set for September 29, 1975 at 10:00 am in my Court-
room. Case No. CR-74-53 {United States v. Richard T. Cardall, et al.) is set
to follow upon conclusion of CR-74-52.
The Court expects all counsel to be present with witnesses and prepared to
S« t« *"^^- Willis W. Ritter,
Chief Judge.
IN THE UNITED STATES DISTRICT COURT IN AND FOR TIIE DISTRICT OF UTAH
CENTRAL DIVISION
JURY TRIALS BEFORE HONOWABLE WILLIS RITTER |
COMMENCING TirURSDAY, DECEMBER IS, 1975
10:00 A. M.
COUNSEL ARE INSTRUCTED TO KEF.P IN TOUCH VHTil THE CLERK AND WITH THE ATTORNEYS
IN THE e^SES Ta^T PRECEDE T!1EM. YOUR CASE KILL 3E TRIED AS SOON AS THERE IS
A DISPOSITION OF TFJD CASES AHEAD OF YOU. FRECUE::TLY THE 0\SES ARE SETTLED
RATHER THAN TRIED, AND T.4S RESPONSIBILITY TO KEEP Il-'FORI-IED AND PREPARED TO GO
TO TRIAL RESTS UPON COUNSEL.
Cr 74-98
United States of America
Max D. Wheelsr
NO. 1
David W. Clayton
(Willful failure to file tax return;
HEARING: Defendant's motion to dismiss information
Defendant's motion to suppress evidence
J. Thomas Bowen, appt.
Cr 75-73
No. 2
United States of America
vs
John Emery Angel
(Assault)
Max D. Wheeler
Earl Dillman, ret.
Cr 75-75
No. 3
United states of America
vs
George Boyd Corbett
Max D. Wheeler
Orrin Hatchr
Walter Plumb, III - ret
(Willful failure to file tax returns)
HEARING: Defendant's motion to quash
Defendant's motion to disqualify judge
Cr 75-79
No, 4
United States of America
Rodney G. Snow
Thomas Warner Hcooes
(Willful failure to file income
tax returns)
EXHIBIT 4
54
Cr 75-80
NO. 5
United States of America
V8
Ray M. Bucsch and Roger E. Backus
(Illegal Hunting)
Rodney C. Snow
Sumner J. Hatch - Ruesch;
Daniel Boone - Backus
Cr 75-90
Ko. 6
United States of America
vs
Bobby D. Bates
Max D. Wheeler
Phil L. Hansen - ret.
(Possession of Pornographic Materials wlv
intent to dl-itrlbute)
Cr 75-101
NO. 7
United States of America
tittle Dutch Boy Bakeries, Inc., William W.
Morris, Alfred J. Taggard and Frank Sakker
(Adulteration of food held for sale after
•hlpmcnt in interstate corvierce ; intro-
duction of adulterated food into interstate
commerce)
Steven Snarr
Norman S. Johnson - Dutch
Orrin Hatch - ^-torris;
Bruce Find lay - Sakker
Gerald R. Killer - Tag-
gard
Cr 75-102
NO. 8
United States of America
Cloyd H. Hepworth, dba , Certified Manufacturing
and Supply, Inc.
(Willful failure to file tax returns)
Max D. Wheeler
Richard Leedy - ret.
Cr 75-109 United States of America
No. 9
LaVar William Ferguson
(False statement to federally insured
Institution)
Cr 75-110 United States of America
No. 10 »»
Allan D. LcMon and Gary LeMon
(Counterfeiting)
HEARING: Redetermination of bail.
Cr 75-111 United State-, of America
No. 11
vs
David Baker
Michael Hunter
Gary H. Weight; r:>rl.XX.
J&DDSQC- ret.
Max Wheeler
Bruce C. Lubock - ret.
(Intcr.>;tatc trnnsporta t ion of falsely made
Steven W. Snarr
John R. Anderson - .ippt.
55
UnlCed Scates of America
VI
Stvernan Glen Kay
(Possession of unregistered firearm)
Michael Hunter
Don Blackham; Dc.in R.
Mitchell - ret.
United States of America
vs
Bruce E. Maw
(Wire Fraud)
Max Wheeler
James Barber - ret.
United States of America
Michael Hunter
Frank Steve Brzotlcky John H. Allen - appc.
(Unlawful transportation of firearm)
United States of America
Michael Hunter
Wesley V. Calloway and Curtis Ray Green
(Dyer Act)
Robert J. Schumacher;
Dale J. Craft - appc.
United States of America
Rodney Snow
John Helia Porter
(Uttering and Passing Counterfeit
Obligation of United States)
Richard G. Allen - appt.
United States of America
Max Wheeler
Hoskie Lansing and Herman Farley
(Rape on Indian Reservation)
HEARING: Def. Lansing's motion to dismiss
Larry J. Echohawk - Lansing
D. Gilbert Athay - Farley
each appt;
United States of America
Michael Hunter
Lynn D. Noren and Main Motors, Inc. M. Byron Fisher - ret.
(False statements in Loan Applic.ition)
NO. 19
56
Craig William McLachliin
(False Statement In Loan Application)
Gilbert Athay - ret.
Cr 75-123
No. 20
CONSOLIDATED
Unl: ' States of America
• s
Kevin U. Barney and James Scott LIddlard
(Arson In National Forest)
Max D. Wheeler
Phil L. Hansen - ret.
Cr. 75-125
United States of America
vs
Lynn D. Lessee
(Arson)
Steven Snarr
Phil L. Hansen - ret.
Cr 75-127
No. 21
United States of America
VS
Peter T. Lorenz
(Giving false inforr-ation in acquisi-
tion of firearm; interstate transpor-
tation of firearm by felon)
HEAKD.'C: Def's motion to suppress evidcr.ce
Max Wheeler
Suaner J. Hatch _ ret.
Cr 75-129
No. 22
United States of America
VS
James Killian
(Dyer Act)
Rodney Sno«
ILlchard T. Ashton - appt.
Cr 75-76
No. 23
United States of America
countryside Farms, Inc.; Egg Products
Company; Olson Farms, Inc., Snow White
Egg Company; R. Kent Christof ferson;
Gilbert T. Cochran
(Conspiracy in restraint of
Interstate Trade and Commerce)
Ramon M. Child;
Anthony E. Desmond
Cli-fford L. .^shton &
Ricardo Ferrari - Coui
tryside Farms & Chris
f ferson;
Herschcl Sap.^rstein -
Egg Product.-,;
Harold G. Christcnscn
Olson Farms -s Cocliran
Robert W. Brandt - Snc
White
HEARING:
(1) Dcf.
(2) Dcf.
(3) Dcf.
(4) Dof.
Egg Product's motion for bill of particulars
Egg Product's motion for inspection & cojjying of grand ]ury testimony
Egg Product's motion for discovery and inspection
Olson farms & Cochran's amended motion for discovery and inspection
In the United States District Court for the District of Utah
CENTRAL division
Motion for 21 Days Advance Notice for Trial Calendar
Comes now Roman M. Child, United States Attorney for the District of Utah,
for and on behalf of the United States of America, and respectfully requests
that this Honorable Court give the Government a minimum of 21 days to pre-
pare for the Court's present trial calendar, and for cause shows the Court as
follows :
57
1. The United States received the Court's present trial calendar, which is
scheduled to commence on December 18, 1975, during the late afternoon of
Friday, December 12, 1975.
2. There are a substantial number of witnesses that must be subpoenaed in
the first, third and fourth cases on the calendar, which are tax fraud cases,
and subpoenas cannot be prepared by the United States Attorney's oflQce and
served by the United States Marshal's office on three working days notice.
3. A substantial number of the cases on the Court's calendar will require the
presence of witnesses who reside outside the State of Utah. Most of those wit-
nesses will be unable to be present because of the inability to arrange travel
through the airlines. Due to the airline strike which has crippled United Air-
lines and due to the usual Christmas pressure placed upon the airlines, flights
in and out of Salt Lake City are already overbooked, and the Government would
be unable to secure its witnesses by reason of the airline problem.
4. The United States Marshal Service has advised the United States Attor-
ney's office that they would need at least ten days advance notice for service
of any subpoena. The United States Attorney is desirous of honoring the re-
quest of the United States Marshal Service in assisting them in performing
their difficult task by giving them a reasonable time within which to serve
subpoenas.
5. Based on the foregoing, the United States Attorney respectfully informs
the Court that the Government cannot be ready to try any of the following
cases on the Court's calendar earlier than January 5, 1976 :
CR-74-98— U.S. V. David W. Clayton.
CR-75-75 — U.S. V. George B. Corbett.
CR-75-79— U.S. V. Thomas W. Hoopes.
CR-75-101 — U.S. V. Little Dutch Boy Bakeries, et al.
CR-75-102— U.S. V. Cloyd H. Hepworth.
CR-75-109 — U.S. V. LaVar Wm. Ferguson.
CR-75-110 — U.S. V. Allan and Gary LeMon.
CR-75-111 — U.S. V. David Baker, dismissed.
CR-75-115— U.S. V. Bruce E. Maw.
CR-75-11G — U.S. V. Frank S. Brzoticky, dismissed.
CR-75-117— U.S. V. Wesley V. Calloway and Curtis Ray Green.
CR-75-120 — U.S. V. Hoskie Lansing and Herman Farley.
CR-75-121 — U.S. V. Lynn D. Noren & Main Motors.
CR-75-129— U.S. V. James Killian, guilty.
CR-75-76 — U.S. V. Countryside Farms, et al.
As to the remaining cases on the Court's calendar, we are not yet informed
as to the success the United States Marshal may have in serving subpoenas
and securing the attendance of both defendants and witnesses in light of trans-
portation problems and the holiday season. We are informed that some in-state
witnesses have left the State for the holidays.
6. For the foregoing reasons the Government respectfully requests that the
Court's criminal trial calendar not commence earlier than January 5, 1976.
Respectfully submitted this 15th day of December 1975.
Ramon M. Child,
U.S. Attorney.
In the United States District Court fob the District of Utah Central
Division
(Or 75-111)
United States of America, Plaintiff,
V.
David Baker, Defendant.
Salt Lake City, UtaHi
December 18, 1975..
Before: The Honorable Willis W. Ritter, Chief Judge.
transcript of proceedings
Appearances: For the United States: Steven Snarr, Assistant U.S. Attor-
ney, 200 P.O. & Courthouse Building, Salt Lake City, Utah.
58
For the Defendant: John R. Anderson, Attorney at Law, Boston Building,
Salt Lake City, Utah. .o -.^vrr
December 18, 1975.
The Court. Baker.
Mr. Anderson. Yes, your Honor.
The Court. All right. Are you ready?
Mr. Anderson. Yes, your Honor.
Mr. Snarr. Your Honor, the government is not. We have Mr. John Olliver
from Denver, Colorado, and George Lewis from San Bruno, California, that we
have not been able to secure as witnesses because of transportation difficulties.
The Court. Now, what is the falsely made security in this caseV Tell me
about it.
Mr. Anderson. Your Honor, we think that the government has charged — well,
this would be developed later on in the trial. What it is, your Honor, it is a
$180 American Express money order.
I made a motion to the Court to dismiss this matter for lack of a speedy
trial under the Constitution. This man has been
The Court. When?
Mr. Anderson. This man has been in continuous custody for five months. And
I think that is prima facie too long.
The Court. I agree. The case is dismissed.
Mr. Anderson. Thank you, your Honor. I will have an order over here.
The Court. Five months and they are still not ready.
*******
CERTIFICATE
I, Barbara G. Andersen, Registered Professional Reporter and Notary Public
for the State of Utah, do hereby certify that the foregoing is a true and correct
transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 14th day of February, 1976.
Barbara G. Andersen, RPR,
Court Reporter.
In the United) States District Court for the District of Utah Central
Division
(Cr 75-116)
United States of America, Plaintiff,
V.
Frank Steve Brzoticky, Defendant.
Salt Lake City, Utah,
December 18, 1975.
Before : The Honorable Willis W. Ritter, Chief Judge.
transcript of proceedings
Appearances: For the United States : Michael Hunter, Assistant U.S. Attorney,
200 P.O. & Courthouse Building, Salt Lake City, Utah.
For the Defendant: John H. Allen, Attorney at Law, Kennecott Building,
Salt Lake City, Utah.
December 18, 1975.
The Court. Next is Brzoticky. This is a unlawful transportation of firearms?
Mr. Hunter. Yes, your Honor. This came from California. And the United
States, at this time, is not ready. There are two witnesses in California and
two witnesses in Colorado and two witnesses in Washington, D.C.
Mr. Allen. I am ready, your Honor.
59
The Court. What is involved here? There is nothing involved in here to fool
around with this matter. , . , . ^ ^- f „
Mr. Allen. I don't think so, your Honor. It is a claimed transportation of a
.22 pistol across the state lines. . , ^ . , ,
Mr HuNTEB. Your Honor, Mr. Brzoticky was residing with his girl friend and
her brother-in-law in California, took the brother-in-law's gun, came to Utah
and pawned the gun. . ^ ^, - i, u i
He pled nolo in the case in Colorado some time ago. And therefore he had
a record. And that was the reason for pursuing the action.
Mr. Allen. The prior case
The Court. You are not ready?
Mr. Hunter. No, your Honor.
The Court. The case is dismissed.
certificate
I, Barbara G. Andersen, Registered Professional Reporter and Notary PubUc
for the State of Utah, do hereby certify that the foregoing is a true and correct
transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 14th day of February, 1976.
Barbara G. Andersen, RPR.
In the United States District Court fob the District of Utah Central
Division
(Cr 75-122)
United States of America, Plaintiff,
V.
Craig William McLachlan, Defendant.
Salt Lake City, Utah, December 18, 1975.
Before: The Honorable Willis W. Ritter, Chief Judge.
transcript of proceedings
Appearances : For the United States : Michael Hunter, Assistant U.S. Attorney,
200 P.O. & Courthouse Building, Salt Lake City, Utah.
For the Defendant : Gilbert Athay, Attorney at Law, 321 South 6th East, Salt
Lake City, Utah.
December 18, 1975.
The Court. McLachlan.
Mr. Athay. He is present, ready to proceed.
Mr. Hunter. Your Honor, there are three witnesses in this. Christine, his
ex-wife, is a key witness. She lives in Midway, Utah. We have been unable
to serve a subpoena on her at this point. We have been unable to establish her
whereabouts.
The Court. This case is dismissed.
* * * * * * *
certificate
I, Barbara G. Andersen, Registered Professional Reporter and Notary Public
for the State of Utah, do hereby certify that the foregoing is a true and correct
transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 14th day of February, 1976.
Barbara G. Anderson, RPR,
Court Reporter.
60
In the United States District Court for the District of Utah Central
Division
(Cr 75-123)
(Cr 75-125)
United States of America, PlaAntiff,
V.
Kevin W. Barney and James Scott Liddiard, Defendants,
and
United States of America, Plaintiff,
V.
Lynn D. Lossee, Defendant.
Salt Lake City, Utah, December 18, 1975.
Before : The Honorable Willis W. Ritter, Chief Judge.
transcript of proceedings
Appearances: For the United States: Steven Snarr, Assistant U.S. Attorney,
200 P.O. & Courthouse Building, Salt Lake City, Utah.
For the Defendants : Phil L. Hansen, Attorney at Law, 250 East Third South,
Salt Lake City, Utah.
The Court. Barney and Liddiard. This is Barney and Liddiard.
Mr. Hansen. Yes, Barney and Liddiard.
The Court. Arson in a national forest. All right. What is the status of this
thing?
Mr. Hansen. We are ready to go.
Mr. Snarr. Your Honor, I believe it has been consolidated with the matter of
Lynn Lossee as indicated on the calendar. The government is still attempting to
secure the presence of a witness from Reno and would anticipate being able to
do so and proceed.
The Court. You what?
Mr. Snarr. We are still attempting to secure the attendance of a witness from
Reno, Nevada. We would anticipate he would be present at the time this matter
would be reached.
The Court. It is reached right now. Your anticipation at some time in the
future is wrong.
Why are these consolidated?
Mr. Hansen. Your Honor, they had separate preliminary hearings, your Honor.
Mr. Lossess wasn't apprehended until after the preliminary hearing of Barney
and Liddiard. All three were together.
We would move to dismiss because we are ready and the government isn't.
The Court. Are you ready in either of those cases ?
Mr. Snarr. As I stated, your Honor, we are ready with the exception that we
have not secured the attendance of a witness from Reno who we feel is essential.
The Court. It is just across the border.
Mr. Snarr. We anticipate that he will be able to drive here and be available
for trial as early as Monday. We would like to select a jury and —
The Court. Both cases are dismissed.
Mr. Hansen. Thank you, your Honor.
*******
cebtificate
I, Barbara G. Anderson, Registered Professional Reporter and Notary Public
for the State of Utah, do hereby certify that the foregoing is a true and correct
transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 14th day of February, 1976.
Barbara G. Anderson, RPR,
Court Reporter.
61
In the Uniied States District Court for the District of Utah
Central Division
(Cr 75-123)
(Cr 75-125)
United States of America, Plaintiff
V.
Kevin W. Barney and James Scott Liddiard, Defendants,
AND
United States of America, Plaintiff,
V.
Lynn D. Lossee, Defendant.
Salt Lake City, Utah, December 18, 1975.
Before: The Honorable Willis AV. Ritter, Chief Judge.
transcript of proceedings
Appearances : For the United States : Steven Snarr, Assistant U.S. Attorney,
200 P.O. & Courthouse Building, Salt Lake City, Utah.
For the Defendants : Phil L. Hansen, Attorney at Law, 250 East Third South,
Salt Lake City, Utah.
December 18, 1975.
The CoLTRT. Barney and Liddiard. This is Barney and Liddiard.
Mr. Hansen. Yes, Barney and Liddiard.
The Court. Arson in a national forest. All right. What is the status of this
thing?
Mr. Hansen. We are ready to go.
Mr. Snarr. Your Honor, I believe it has been consolidated with the matter
of Lynn Lossee as indicated on the calendar. The government is still attempting
to .secure the presence of a witness from Reno and would anticipate being able
to do so and proceed.
The Court. You what?
Mr. Snarr. We are still attempting to secure the attendance of a witness from
Reno, Nevada. We would anticipate he would be present at the time this matter
would be reached.
The Court. It is reached right now. Your anticipation at some time in the
future is wrong.
Why are these consolidated?
Mr. Hansen. Your Honor, they had separate preliminary hearings, your Honor.
Mr. Lossee wasn't apprehended until after the preliminary hearing of Barney
and Liddiard. All three were together.
We would move to dismiss because we are ready and the goverment isn't.
The Court. Are you ready in either of those cases?
Mr. Snarr. As I stated, your Honor, we are ready with the exception that
we have not secured the attendance of a witness from Reno who we feel is
essential.
The Court. It is just across the border.
Mr. Snarr. We anticipate that he will be able to drive here and be available
for trial as early as Monday. We would like to seelct a jury and
The Court. Both cases are dismissed.
Mr. Hansen. Thank you, your Honor.
m ***** *
certificate
I, Barbara G. Andersen, Registered Professional Reporter and Notary Public
for the State of Utah, do hereby certify that the foregoing is a true and correct
transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 14th day of February, 1976.
Barbara G. Andersen, RPR,
Court Reporter.
62
IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT C UTAH
JAN 12 1976
CENTRAL DIVISION
JURY TRIALS BEFORE HONORABLE WILLIS RITTER IMiN ■■■•'.r,', iT;i,Z>-~y (.-■«
COMMENCDJG WEDNESDAY, JANUARY 14, 1976
10:00 A.M.
COUNSEL ARE INSTRUCTED TO KEEP IN TOUCH WITH THE CLERK AND WITH THE ...TORNEYS IN THE CA ;
THAT PRECEDE THEM. YOUR CNSE WILL EE TRIED AS SOON AS THERE IS A DISPOSITION OF THE C\: ■ '
AHEAD OF YOU. FREQUENTLY THE CASES ARE SETTLED R.ATHER Til.\N TRIED. AND THE RESPONSIBILITY
TO KEEP INFORMFD AND PREPARED TO CO TO TRIAL RESTS UPON COUNSEL
Cr 75-79
Ro. 1
United States of America
Thomas Warner Hoopes
Rodney G. Snow
David J. Knowlton - ret.
(Willful failure to file income tax returns)
Cr 74-98 United States of America
Bo. 2 vs
David W. Clayton
(Willful failure to file tax returns)
HEARING: Defendant's notion to dismiss information
Defendant's motion to suppress evidence
Max D. Wheeler
C 6-72
No. 3
Walter E. Williaas
Otis Elevator (Company, corp.
Christiansen Brothers, Inc. and W. W.
Clyde and Company, joint ventures
(Damages - Personal Injury)
JURY TRIAL - Determination of Damages
W. Brent Wilcox:
A. Wally Sandack
Ray R. Christensen
Reed L. Martineau
C 74-105 Elizabeth Pace and Joyanna White
No. 4
vs
Hlroshl Tonolke
(Personal Injury - Motor Vehicle)
John L. McCoy
David K. '(finder
C 74-140 Carmen Kathleen McKell
No. 3 vs
Helba Lynne Jarnun
(Personal Injury - Motor Vehicle)
Thomas R. Blonquist
F. Robert Bayle
EXJIIBIT 8
63
JUKI IKlALa BttUKC. nur<UIU\Ul.C Mll.t.i:> KXilt.K
C 74-330
Xo. b
C 74-382
No. 8
Ray Wardle
The Ute Indian Tribe, a Federal Chartered
Corp.; Francis Wvasket ; Ho:Tiey J. Socakuku;
Fred A. Conctah; Wilbur Cuch; Irene C. Cuch
and Gary Poouc^up, Indlvldunlly and as mem-
bers of Uintah and Ouray Tribe Business
Conmlttec ; and Michael A. Quinn, indivi-
dually and as chair"-in ot Ute Tribal
Personnel Com-iiittee
Janes R. Black;
Kenneth N. Kripke
Scott C. Pugsley
(Civil Rights)
C 74-342 Pamela Marshall S. Rex Lewis
No. 7 vs
Frank Hildebrand John H. Snow
(Personal Injury - Motor Vehicle)
Jerald C. Atwood
Union Pacific Railraod Coapany
Orrln G. Hatch
S. M. Matheson;
Robert N. Weatherbee
(Violation of Federal Employers'
Liability Act)
C 74-389
No. 9
Brenda McGuire Shuman
Iva Oliver (Koslowski) Hawkins and
Herbert Koslowski
C. Jeffrny Thompson
H. Wayne Uadsworth
(Personal Injury - Motor Vehicle)
C 74-394
No. 10
Ricardo A. Castro
vs
Cerro De Pasco Corporation, subsidiary
of Cerro Corporation
(Breach of Contract)
Don E. Hammill
James B. Lee;
Daniel M. Allred
C 74-397
No. 11
Gary D. Peterson and Thomas D. Peterson
vs
United States of America
vs
Provo River Water Users Association, corp.
(Wrongful Death)
John L. Black
Ramon Child
J. Dennis Frederick
64
JURY TRIAL CALENDAR BEFt.
:OR.M W:LLIS RITTER
C. 75-14
No. 12
Robert Rees Dan-;:-.'
vs
Pioneer Ccn-E-"'otor Cor^oratior.
Illinois corpor-icion
(Personal Injury - Lawn Mower Accident)
Page 3
John E, Shambcrg;
Don E. Hammlll
LeRoy S. Axland
Cr 74-54 United States of America
No. 13 vs
J. Hilton Rich
(Bankruptcy Fraud)
JURY ALREADY I>[PANELED
Ramon H. Child
Donn E. Casslty
Cr 75-76
No. 14
MONDAY ,
United States of America
Countryside Farms, Inc.; Egg Products
Company; Olson Farms, Inc.; Snow White
Egg Company; R. Kent Christof f erson ;
Gilbert T. Cochran
(Conspiracy in Restraint of
Interstate Trade and Commerce)
Ramon Child ;
Gary Spratling
Clifford L. A-hton i Ricardo
Ferrari - Countryside Farms
and Chr is tor ler son ;
Herschel Sapsrstsin i Clark
Sessions - E'H Products;
Harold G. Christensen - Olso
Farms & Cochran;
Robert V. Brandt - Snow Whit
FOR Till-:
ISTRJCT OF uvm - cnc
United states of America
V.
J. Milton Rich
INiOV 1-11375
No. CR 74-54
CALL OF GVLErBW
TAKE NOTICE Ih.it the above- entitled case has been set for p^:a jXj-p^Y TRL\L al
Salt Lake City , on THUnSD.-iY, NO'-TZSER 20 , 19 75 , at 10:00 A.M. bjfore
Honorable Willis K. Ritter, P.O.i Courtiiouse Bldg. , 350 South Main.
Date tcovember 14
19 75
-.VERL.C-.PXTailE..
a-rh.
By
Deputy ClcrU.
-on Child, U. S. Attorr.ey, 200 P.0.& Co-jrthouse Bldq. , Salt Lake City, Utah
^x>nn E. Cassity, Esq., Kaarns Bldg., Salt Lai'-e City, Utah
J. Milton Flich, 6251 Sanaa Creek Court, Florissa.nt, Misscuri
-37v\^-
<. 1 1 -^
\^
65
JURY IIUAL.T DEPOr^ llONORADLE WILLIS W. RITTER
CXX-«ENCING THUI^DAY, NOVUEER 20, 1975
10:00 A.M.
C0U^4SEL ARE lUSTnUCITD TO KEEP IN TOIXIi MTII 'nE CLERK M.T) V.'ITII TIE ATTOKrEYS IN T;1E CV^ES
THAT rr.fcxiT)E 'na-.M. your c-^e mix. be tried a.s scom rs here is a DicPostrroM cf -nn- c/ces
AIIE'\D O" YOU. FaFCXT^jTLY P.IE C\SFS Ai^E SCITLCD R\T1ER TILV) TRIED, A.\'D TIE RESPONSIBn.ITY TO
KEEP ErOPO-ED. AND rRET^XFZD TO OD TO TRIAL RESTS UTO.M Ca^ISEL.
C 274-70
No. 1
C 194-73
No. 2
Donald Doyd Julandcr and Jeff Julander,
John Juli'inder, Lorraine Ann Julander
and Bruce Julander, minors, by their
guardian f-'ary Vaughn Julander
vs
Ford >totor Conpony, a corp.
(Mjtor vehicle accident - death)
Willia.-n Taylor Ne,-;land, IV
vs
Robert Ibrton, Agent for Eareau of
Narcotics and Dongarous Dnjgs and
Ronald R. Robinson, Sheriff of Suirrait Co. Utah
(Danages - Violation 5th and 6th Amendn-ents)
C 210-73
No. 3
^
Flying Diamond Corp., a corp.
vs
Dan island, John Sutherland, Craig Johnston
Robert L. Lathu:?,, Orland KJ.elcon, ThoTas
Sadley, Mirray Rayb^-im, V.'illian\ Saver,
American Stock Transier Co., a Corp.,
Jay Miller, Ei.-eliTi Mitche.ner, Transar^arican
Securities, Inc. a corp., Duane Jenson,
John Badger aka J. J. Badger, Phillip K.
Smith a^-.a P. K. Srrith a'--a Phyllis K. Smth,
J. M. SrTu.th aka Jack Sn'ith, P Skesn, D. Todd,
Jaites Lunr-iar, John Does 1 through 10 and
Don Anderson
(Securities E:-:change Act of 1934)
C 74-66
No. 4
United States of Air.erica
vs
80 Acres of Land, more or less, situated
in S£in Juan County, Utah, Robert Byron
Redd aka Robert B. Rc-dd and Lynda Heidi Redd,
his wife, et al., and unknov.-n cuvners
(l^nd Condemnation)
C 74-109
No. 5
Vem R. Webster, Robert B. Sheldon, Orson P.
Kesler and Gordon .•■■cClcan, iir.lividually and
as representative pc-.Tbcrs of a class
vs
The Travelers Insurance Co. , Equitable Life
Insurance Society of tlic L'niteil States,
Prudential Insurance Co. of America, Aetna
Idfe a'nl Casualty
Ken Chamberlain
Clifford L. Ash ton
Scott Savage
Pay R. Christenscn
James A. »;Intyre
Ramon M. Child
Rsbert W. A.d'iins
Hardin A. V.^hitney
Richard Leedy
Robert V. Phillips
Glenn C. Hanni
Richard C. Dibblca
Joseph t'cCarth:y
Ramon H. Child
Vernon B. Rc--.ay
San Juan Councy Attorney
Paul E. Reiriann
Robert S. Campbell, Jr.
Curtis K. Ol^erhonsley
Dennis E. Olson
Dan L. Berman
Jonathan A. Dibble
Stephen B. N-U'-kor
Ricardo B. Eeirari,
Harold G. airistensen
(Clayton Act and the Sherman Act)
66
No. 6 Larry G. M-Clcllan
(Violation of Fifth ;"jTicndment - Civil Riyhts)
Robert Van Soivcr
C 74-140 Camion KatlUccn teKcll
vs
No. 7 Mclba L;,Tuie Janr.m
(Auto Collision - Uijiuy)
Thomas R. Blonquist
F. Itobort Caylc
C 74-149
No. 8
Jerrold R. >t)rgan
vs
Vcrland T. Utiipple
(Breach of Contract)
William G. Gibbs
Ralph R. ttaboy
C 74-153 Danvin L. Stone
vs
King-Soelcy Thermos Co . , Inc. ,
No. 9 a Delaware corp.
(Breach of Warranty, Judgn^.ent for Parsonal Injuries)
Glen M. Rich.T'.=m
Stephen B. Nebf--;er
C 74-166
NO. 10
Colorado Well Ser'/ice, a Colorado corp.
Gulf Oil Corp., Go International, Inc.
John Doe Insurance Co., or Companies
and John Dee
(Collection of Insurance for Dairages)
William G. Git-is
Eaward T. V.ells
Stephen B. Kci;?-;er
Richard H. :'offat
John L. Young
C 74-192 Cleon D. Tuclier, Betty J. Tucker, his wife,
Willard M. Tucter arc Pniilis 0. Tucker,
his wife
No. 11 vs
Eugene S. Siirrscn, ."like Russell, Continental
Account Servicir:g House, I.-.c. , a Utah Corp.,
ard Key Account Collection House, Inc., a
Utah Corp.
(Violation of Securities Exchange Act)
Arthur S. Kielsen
David S. Cook
Richard J. I/23-ly
Richard B. Cuatto
C 74-257 JoAnn Cook
vs
City of Price, Carbon County, Utah, V.'alter
T. A:<elgard, t-Liyor of the City of Price,
No. 12 Harold O. Patterick, Harold .■•lark Hanson,
Itiy AtAiDod, Ja.T.es Lee Jcns3n, A.Tel Dcnison
as rembers of the City Cou.ncii
(Civil Rights)
Donn E. Cassity
Michael T. ttcCoy
Luke G. Pappas
C 74-272 Frank E. and Delores Velarde, individually
and on beJialf of Richard Matthew Velarde, Dec'd
No. 13 vs
City of Salt Lake, Glen N. Greener in his
capacity as Public SaLi'ty CcrrmisGioncr of the
City of Salt Like, J. Enrl Jones, in his capacity
as Qiief of Police of tiio City of Salt Lake and
Lorenzo Phillip^, indwiiiually and in his
capacity as an officer of Salt Lake City Police Dept.
Stephen W. Cook
Roger F. Cutler
John T. NiclLj-'n
Harold G. Chris tenscii
(Wrongful Doatli)
67
vs
John !t>xlL;
First Security Bank of UtnU, N. A.
(Breach of W^irranty)
Hardin A. iNtiitnoy
Jeffrey N. Clayton
Jonathan A. Dibble
Rcnoc P. SchloGser
vs
Jelco, Inc.
(Civil Rights)
Stephen W. Cook
Robert M. Yeates
Phyllis Frischl-cncciit, by and tlvrouqh
her Guardian art Litaa, Gail Frisch^-Jischt
Hutchinson, and Gail Frisch}-jiecht Hutchinson
individually
vs
Charles FOss
(Personal Injury - yotor Vehicle)
H. Wayne V.'ads'.-A^rtli
F. Pobcrt Bayle
Wallace R. Lauchnor
Clara 'A. Nell
Freeiran Decorating Co., a corp.
M. Blaina Kofeling
Verl R. Tophi.--,
Anthony M. Thurber
Timothy R. Ha.ison
(Personal injury - fall in defendant's cisplay booth ovsr electric cord)
Clayton Haight and Kathic Kaight
vs
Ether Joseph Chris tensen
(Personal Injur* - I'czor Vehicle)
Orrin G. Hatch
Glenn C. Ha.ini
Grant L. Cavalli .
vs
Union Pacific Railroad Company
(Federal Employer's Liability Act - Negliga.-.ce)
Orrin G. Hatch
S. M. mtheson
J. C. V,'illia.-^3
David E. ^■artin
vs
I-tir^orie Holir.ss tladill, ?d.-ninir.tiatri>:
of the Estate of Vcrl K. ;:::-lill, C<.Z'^scd, and
V. K. Iladill ?>s?halt Paving Corpany
(Personal Injury - Autcnobile Accident)
Donn E. Cassity
Glenn C. Harni
United States of America
vs
c:arl D. Pcwers
Max D. V.Tieeler
Sumner J. Hatch
(Tax evasion and subscribing to false return - 3 counts)
United States of America
VG
Karl Stock Striith, David Leon Orlob
Rodney Snow
Gilbert Athay
(Conspiracy to siimit false statary^nts, false statements and aiding .nd
abottLng - 14 counts)
United States of Aircrica
vs
J. Milton Ricli
Ramon M. Child
Donn E. Casr.ity
(Elankruptcy Fraud)
68
CETTRAL DIVISION
JURY TRIALS BEFORE fKDNORABLE WILLIS Ri'l'l'EH
CX>MENCEJG TUESDAY, OCTOEIER 21, 1975
10:00 A.M.
0CT21,I975
OOONSEL r\PE INSTRL'CITD TO KEEP DI TiXCil OTTH TIE CLETJC AND OTTH THE ATT0R:J_i3 IN TTO-. ^-■._.-. IIAT
PRECFEE TiEl. YCX-R C^SE OTLL EE T^ED .\S S-Oai ,\S TIERZ IS A DISPCSITICN OF T!iE CV=;ES Ai'llV) OF
YCW. FKEaT:>JTLY TIE C'SES APZ SCmiD P.\TI!EK TH/sN TRIED, A.V) THE RESPaiSIBILITi TO KEEP IVCK^CD
AND PREPAREX) TO GO TRIAL RESTS L^PGN OX'TiSEL.
CR 75-8
No. 1
United States of .■^jTorica
-vs-
Steve Maycjock i E3die B^adshaw
(Theft of Goverraicnt Prcperty) Cam:. I on each aa,Y.
Max D. Wheeler
Alvin I. S^th for J'jyccck i
Bradshaw
CR 75-10
No. 2
United States of A-nerica
-vs-
Rick 0. Rasinusse.n
(Illegal Ditry on Military Reservation)
Kax D. Wheeler
John Bucher
CR 75-20
No. 3
United States of America
-vs-
Kayne Adams aka Swede Adams
(Receipt of Stolen Property)
Max D. Wheeler
Matt Biljanic
CR 75-24
No. 4
United States of America
-vs-
Richard Speir, Vernon Blade and Gary Puffer
nSoft of Government Prcpertr,')
Kax D. Wheeler
E. Craig Smay for Puffer &
Spier
Daniel E. England for Black
CR 75-26
No. 5
United States of America -
Will Henry Savage, Jr. >-^ O**
(Forging and Uttering United States Treasury Cheak)
/^ Rodney G. Sncv
Stanford S. anith
CR 75-29
No, 6
United States of Airerica Michael M. Hunter
-vs-
John Bnil Hochmiller David Bown
(Interstate Transportation and Disposal of Stolen Motor Vehicle)
CR 75-30
So. 7
United States of Airerica
-vs-
Ronald Eldcn Bench & Sally Anderson
(Receipt of Stolen Property)
Max D. (■aieeler
Dean R. Mitchell for Bench &
Anderson
CR 75-32
NO. 8
CR 75-34
No. $
United States of America
-vs-
John Elnil Hochmiller
Michael M. Hunter
David Bcwn
(Interstate Transportation and Disposal of Stolen NkDtor Vehicle)
United States of ATorica
— ^_
Karl Stock Smith & David Loon Orlob
(Conspiracy to Sutmit False Statortints,
False StatoTiTits ard Mdina and Atx^ttinal
Rodney G. Srow
Dean R. Mitchell for £nit.h
" r:iLbcrt At.hay for Orlob
69
CR 75-37 United States of Airtirica
-vs-
Jay W. Sijnpcr, Terrry Simper, Gary Sir; ;r.
No. 10 and Daniel Allen
Rodney G. Snc3w
E. Craig Stnay for all Defs.
(Criminal Conspiracy to Defraud the C. S. and Theft of Timber frcm a
National Forest)
CR 75-36 United States of Anorica
-vs-
James Bernard Fay, Jr. , and Joseph
No. 11 John Ticiman
(Conspiracy to Violate [Bank Robbery])
'fedney G. Snow
P. rtobert Knight for Ticman
George J. Raimey for Fay
CR 75-39
No. 12
United States of America
-vs-
Charles N. Pierson
' Max D. Wheeler
Clark W. Sessions
(Tax Evasion, Suhscribinq to a False Return Under Penalties of Perjury,
and Aiding and Assisting in the Preparation of False Returns)
CR 75-40
Ho. 13
United States of A-rerica
-vs-
Frank M. Whitney
J^^^PV*^!;efe',1.6X "S^ "^ ^*^
J. Jay Bulloci-., S. Scott Sa'/ag;
and Gerald R. Mill-sr
(l^x Evasion and Signing False Return Under Penalties of Per]ury)
GR 75-41
So. 14
United States of Aiierica
-vs-
Carl D. Pcv.'ers
(Tax Evasion and Subscribing to a False Return)
^fe^x D. Wheeler
Sumner J. Hatch
IR 75-42
So. 15
United States of A-rierica
-vs-
Irving S.' Hutchinson
Max D. Wheeler
Suraner J. Hatch
(Receipt by a Felon of Firearm shipped Ln Interstate Ccntnerce; Giving
False Information in Acquisition of Firearm)
CR 75-43
Mo. 16
United States of America
-vs-
Elvin L. Booth i Donald G. Cax
•Max-D. Wheeler 'M ^Vc ^ A<\
D. Gilbert Athay for Cox
Rich£ird J. Leedy for Booth
(Interstate Transportation in Furtherance of Schene to Defraud)
HEARING CM: Def. Booth's Motion for Bill of Particulars; Def. Booth's .'•Votion
for Severance ard Separate Trial; and Dot. Dcoth's ."totion for
Authorization to Cotain Trial Transcript
CS 75-47
No. 17
United States of America
-vs-
lErls Lynn Moore aka Christy Lynn Bright
(Porgery, Uttering and Possession of Stolen Mail)
•Michael M. Hunter
Robert Stansfield
CR 75-51
No. 18
United States of America Rodney G. Snow
-vs-
Eijuity Oil Corpiny Frank Gustin
(Unlawful Taking and Killing of Migratory Game Birds)
70
:< 7J-62
.0. 19
:s 75-64
:to. 20
JR; 75-67
:». 21
United States of America
-vs-
Glade Edward Jennings
(Uttering Altered Government Obligations)
United States of Ajnerica
-vs-
£iTiest Rabbit Casey
(Crime on Lrdian Country)
United States of A.-TErica
-vs-
Austin Brent Kackha-n
(Counterfeiting)
Max D. «J<\ji^jiA.
M t/^-f p^
R. Brent Stephens, Craig S.
Coak
Max D. -tflinflUJ
Brant H. Wall
Mcix D. Wheeler
Gilbert Athay
OR 75-68
3b. 22
United States of America
-vs-
L. Anthony Fodda
(False Statement to Federally Insured Institution)
Max D. 4-;heeler
Thomas P. Vuyl< ^^„4U
31 75-70
•Jo. 23
United States of A-nerica
-vs-
John Martin Huf fr-an
(Theft of Goverr-jTEnt Property)
Max D. Wheeler
Theodore I. Wittrayer
ZR 75-72
X>. 24
Urdted States of Anerica
-vs-
Gerald Mountainlion and Ronnie A^^pavroo
(Crime on Indian Psservation — Assault with
Dangerous V.'eapon)
Max D. Wheeler-
1-(X^y^^
W. Robert Wright for
Mountainlion
Charles C. Ercwn, for Appawco
2R 75-82
So. 25
United States of Ajnerica
-vs-
Vinoent Sireech, Sr.
(Crime on an Indian Reservation — Incest)
Max D. Wheeler
J. Band Hirschi
CR 75-84
». 26
United States of America
-vs-
Hc^jard Daniel Newmeyer, Jr.
(Illegal Transfer of Destructive Devices)
Sanford Jorgenson
ZR 75-88
So. 27
United States of America
-vs-
Soott Riley Straw
(False, Fictitious or Fraudulent Claims)
Max D. Wheeler
D. Gilbert Athay
2R 74-54
to. 28
United States of Ajnerica
-vs-
J. Milton Rich
(BanJtruptcy Fraud)
Ramon M. Child
Donn F. Cassity
71
CR 74-50
No. 29
United States of Anvrica
-vs-
Jay Victor Miller
(Criminal Contempt)
Rodnoy G. Snow
Suimcr J. Hatch
CR 75-65
No. 30
United States of /Vnexica
-vs-
Dwayne Nath.in llawkes
(Theft of Goi.'cmraent Property)
COURT TRIAL
•Max D. Wheeler ^ ^^, aJ^/\^
Joseph C. Foley
72
IN THE UNITED STATES DISTUICT COUET IN AND FOR THE DISTKICT CF UTV'i
JURY TRIAL cal::wdak before honorable killis-w^— cttsver
central division
commencing MONDAY, NOVEMBER 4, 197.',, at 10:00 A. M.
/
COLrr:~.nvRinK.ST:<'JCTLD to KLhP IN TOUCH V.'ITH TliE CLE.'..; A'-'D WITH II.':; .Vi'TOKI.L^'S III '. :
C->SES THAT PUCCEDE THEM. YOUR CASE WILL BE TRIED AS SOON AS THERE IS A Di;POSITIO\
OF IWV. CASES AEE.^O) OF VOU. FrOTQUEtiTLY THE CASES AP^E SETTLED P^.ATHEP. THAN TFIilD, :::^
THE RE?P0:,'S1CII,TTY TO KEEP INrO'.'-M^D AND PREPARED TO GO TO TRIAL PESTS U'^CV COUy.'Er . ■
Cr 74-14
FIRM SETTING
Nov. 4
No. 1
C 74-33
FIRK SETTING
Nov. 5
No. 2
United States of America
vs
Tam Hailing
(Distribution of a Controlled Substance)
Rodney G. Snov
Svimncr J. Hatch, ret.
Jam&s. M. F>utler
i>^'
'i^^-
ly
Ellen Clark and^jsir.den Clark, and
Herbert Michael Eii«
Linden Clark
Defendant & 3rd Party Pi
vs
Pembroke Company
(Personal Injury - Motor Vehicle)
Anthony M. DeFino, E=
John L. Dlack, Esq.
Hanson S Garrett;
Morgan, ."slhuish,
Monaghan , McCoid a
Spieivcgcl
Cr 74-19
FIRM SETTING
Sov . 6
United States of America
vs
Corky Lennox, aka Dicky Lennox
Rodney G. Snov;
David M. Bov;n, ret.
No. 3
(Enticement of a Female to Travel Interstate
for Purposes of Prostitution)
Cr 74-20
No. 4
United States of America Rodney G. Snow
vs
Bobby Joe Moore Phil L. Hansen, ret.
(White Slave Traffic Act & Conspiracy)
Cr 74-22
Nov. 8
United States of America
vs
William D. Bond
(White Slave Traffic Act)
Rodney G. Snow
Phil L. Hanson, ret.
No. 5
EXHIBIT 11
73
C 74-143
FIK-l SnTTIKG
Nov. 11
No. 6
Donald C. Johnson
vs
chevron Oil Company
(Personal Injury)
Robert M. McFac, V.r.c.
H. V.'aync V.Viui;v.ortli, C:
RayFiOnd M. Dcrry, Esq.
Cr 74-24
Nov. 11
No. 7
United States of America
vs
Reuben Arthur Scott
(White Slave Traffic Act & Enticement)
Rodney G. Snow
Phil L. Hansen, rot.
Cr 74-30
Nov. 11
No. 8
United States of /jnerica
vs
Emil Cleir.ons
(Internal Revenue Code)
Max VsTieeler
Sumner J. Hatch, ret.
246-73
Nov. IE
Nu. 9
Dale Isorkr.an
vs
Ontario Drive S Gear. Ltd.; Salsbury
Corporation; Instru.T.ent Eysterr.s
(Breach of VJarranty causing
personal injury to plaintiff)
Ray G. Martineau, Esq
Richard V,'. Giauque,Esi
Ray R. Christenscn.Es'
Rex J. Hanson, Esq.
H. Kayne ra:"Dvorth,Es
Raymond Berry, Esc.
C 343-73
Walter Martinez, a minor by Willie
Martinez; Jce Kartir.ez, a ninor, by
Walter "artinez; Kathy Jones, a ninor,
by Donald L. Jones; Kenny Jones, a
minor, by Donald L. Jones; Dennis
Rinaldi, a minor, by Michael Rinaldi
David K. Robinson, Es
Raymond S. Uno, Esq.
No. 10
Boyd F. Gurney, Clarke N. Johnsen,
Don Rowberry, Reed Russell, Billy
Bunnell, Don Kirk, Ov/en Cluff, and
John and Jane Does 1 to 65, and
Board of Education of Tooele School District
(Violation of First & Fourteenth Amendments -
Civil Rights)
Allan L. Larson, Esc.
Cr 74-4S
No. 11
United States of America
vs
Karl S. Smith and Gerald Robert Ames
(Conspiracy to .Misapply Bank Funds
and Kisapplication of Bank Funds and
Aiding and Abetting in .'lisapplicaticn
of Bank Funds)
Rodney O . Snow
Sumner J. Hatch, rcc.
Dean R. Mitchell, ret
74
Cr 74-66
United States of America
Michael Hunter
No. 12
C 190-73
Nov. 25
NO. 13
Joseph Franklin V.'alker, Jr., aka
Larry Brandon
(False Personation)
John D. Russell, ret.
K. Jay Holdsworth and Dona S. Holdsworth Harold G. Christenscn
vs
Kline D. Strong Clifiord L. Ashton, E
(securities Exchange Act of 1934)
C 139-70
Ervin H. Stolle, Cipriano G. Alba
and Florian Lavoi'>
C.R. Henrikscn, Esq.
Edgar A. Brekke, Esq.
No, 14
Arlandor A.llen Jennings and Willard
Pease Company, Inc.
(Damages
Carman E. Kipp, Esq.
■personal Injury (I'.otor Vehicle) )
374-73
jec. 2
No. 15
Everett E. Trees and Ruth E. Trees, a
partnership, cba Trees Trailer Sales
and Everett E. Trees & Ruth E. Trees
Johnson Livestock Co., a corporation
and Thomas" Floyd Johnson
• (Personal Injury - Motor Vehicle)
Brigham E. Roberts, E
F. Robert Bayle, Esq.
C 206-73
No. 16
Tommy Bruce Bond
vs
United States of Anerica; Dept. of
the Navy, & Capt. Frank C. Gilmore
(Breach of Contract)
Wayne G. Petty, Esq.
C. Nelson Day
Jackson Hoi/ard, Esq.
C 354-73
No. 17
Randy F. Bishop
vs
Joetta Narlene Ogea
(Personal Injury - Motor Vehicle)
David E. West, Esq.
Glenn C. llr.nni, Esq.
C 377-73
Eugene Earl Buttery
Robert F. Ortor. , ;; .
Allan R. Earl, Esq.
No. 18
The Brianhead Corp., Brianhead Ltd.,
Charles E. Gunnoo i Burton Ilichols,
individually and ac general partners of
Brian Head Ltd; Joretta L. Gunnoo and
Sally P. Nichols
Jay E. Joncon, Fr.q.
75
Cr 74-44
No. 19
United States of America
vs
Laura Marian Nichols
(Willful Failure to File Individual
Income Tax Returns)
Max Wheeler
Roger D. Sandack,appt
Cr 74-50
No. 20
United States of America
vs
Jay Victor Miller
(Criminal Contcm.pt)
Rodney G. Snow
Sumner J. Hatch, ret.
Cr 74-51
No. 21
United States of America
John J. Badger, Jay Victor Miller,
and Evelyn Matchener
Rodney G. Sncv;
Sumner J. Katch, ret.
Richard Leedy, ret.
(Fraudulent Sale of Securities; Sale of Unregistered
Securities; Interstate Transportation of Falsely
Made Stock Certificates; Interstate Transportation
.of Im.plericnts Used in Falsely MaJcing Stock Cer-if ice tes)
C 74-161
Salt LaKe Valley Innkeepers Assoc, Inc.
J. Thomas Greene, t;sc
Giftord V,'. t'rice. Esq
Dec. 16
No. 22
James Lynn, individually and as Secre- B. Lloyd Poelr.'.sn, Esq
rary of Housing & Urban Development; W. Robert V.'right, Esc
Robert Rosenheim, Robert J. HatuscheK, Greg R. Hav!:ins, Esq.
Salt Lake City Corp., Redevelop-ent John P. Hcmpel , Esq.
Agency of Salt Lake City, Danny V.'all, Salt Michael Hunter, Asst.
Lake City Ccr.-nission as Redevelopment Agency, U.S. A.ttorney
E. J. Garn, Conrad B. Harrison, Jennings j.
Phillips, Jr., Stephen M. Harm.sen, Glen Greener,
Hartnett-Shav: Development Co., Inc.
Cr 74-56 United States of America
Jan. e, 1975 vs
Ned Millett Kofford
do. 23 (Fraud by Wire)
Rodney G. Snov;
Bruce Coke, Esq.
C 363-/2
Jane Doe
Richard I. Aaron, Cgc
Mary T.c-- r- 'o, -■■r.
No. 24
Evan E. Jones, Jr., Richard P.
Lindsay, Doualaa E. Jol'.nLon, Gerald
Burnett, Harry A. Alexander, L. R.
Roylancc, Goraldine Atkinson, Sharron
N. rovan, l';iul M. Clirictopherr-on , Glen
K. Vernon, Lsc:;i;ie L. r.ciimg, Marilyn
Peterson and Floy Taylor
(Viol;ition of Civil Rights Under Public
Welfare Division of Far.iily Services)
Vernon B. Komney
76
C 118-73
No. 25
J. Eugene Robinson & Alice R. Stephens
vs
Kenyon D. Robinson, Leon D. Robinson
and Thomas D. Robinson
(Imposition of Constructive Trusts)
David K. Watkiss, Esq
David E. V.'ost, Esq.
C 74-51
No. 26
Wilma Nielson
vs
Safeway Stores, Inc.
(Personal Injury - Judg:nent)
Richard Giauque, Esq.
Tex R. Olscn, Esq.
Clifford L. Ashton,Es
Chris V.'angsr-rrc'. , Ziiq.
Stephen B. uebckcr,EE
Cr 74-53
United States of A^T.erica
Rodney G. Sr.ov;
Jo. 27
Richard T. Cardall, frank L. Parks,
William Allen, International Chcr.ical
Development Corporation, and Golden
Rule Associates
(Conspiracy; Fraudulent Sale 'of Stock
Sale of Unrecis-ercd Stoc!:)
James A. i:cIr.tosh,Esq
V7allacc R. Bennett, Es
Dean R. Mitchell, Esc
Lowell Ha\:;;s, Esq.
cr 74-76
No. 28
United States of ."irr.erica
vs
Wallace Murphy Plum, aka Porky Plum
. (Receipt in ICC of Stolen Silver)
Rodney G. Snov
David Eown, Esq.
Cr 74-11
Mo. 29
United States of America
vs
David Atchley, aka Donald R. Decker
(Theft from Interstate Shipment)
Rodney G. Snov/
Phil L. Hansen, ret.
Cr 74-43
No. 30
United States of America Rodney G. Snow
vs
Grover Adelbert Sponable Jerome Mooney, Esq.
(Theft of Baggage From an Interstate Shipment)
Cr 74-54
No. 31
United States cf /j^crica
vs
John W. Rich, J. Milton Rich, v/illiam
D. Rich
Rodney G. ?-.o-.
Donn E. Cassity, Frq.
(Bankruptcy Fraud)
77
IN THE UNITi:n STATKS DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH
CRItllNAL JURY TRIAL CALENDAR nCFOIo: KOr.'OILADLE KILLIS \1 . RJ>M'i:R--« . /_.j |
Cf-JNTRAL DIVISION
MAY 2 i. 19 74
COMMEHCIKG TUUSDAY, MAY 28, 1974
10:00 A.M. t..u.^..-.Ai.o....r.yu3
ccuTTiTrL AKi: iKSTiiUCTr;D ro i;L:i:i' in '.oi-ji-: \<±'i:: ii,-:. CLiJK.-; and v-iTi; x:;:: A'ii'o:.:;;JYS x>!
t:::: cases tilat pkf.cedf them, your case v.'ill bE tried as sook as there ts a dis-
position OF THE CAS':S AHEAD OF YOU. FREOUENTLY TI'.E CASES ARE SETTLED RATIJER T;'7='
TRIED, AND TJIE RESPONSIBILITY TO KEEP It:FOr^MED AND Pr^PA.RED TO GO TO TRlJOi llESTS
UPON cou::sr.L.
Cr 7 4-1 United States of America Rodney Snow
vs
No. 1
Sheldon Giles David A. Robinccn , ret.
(False & Fraudulent Nithl.olding Statement)
Cr '4-li United States of /jnerica Rodney Snow
David Atchley, aka Donald R. Decker Phil L. Hansen, ret.
(Theft from Interstate Shipment)
Cr 74-12 United States of /jnerica Rodney Sno\>"
^ A •'' vs
Jack Vanekolenburg John D. O'Conncll, ret.
(Distribution of a Controlled Substance)
Cr 74-13 United States of /^rr.erica Rodney Snow
^.,-..2 5 vs
t^-o. 4 Rand Spcr.ccr Mecharr. John D. O'Conn-.i!, rot.
(Distribution of a Controlled Substance)
EXHIBIT 12
78
Cr l^-li United States of America
5
Rodney Snow
^
.;>^
14o . 5
Tam Hailing Sumner J. Hatch, rot.
(Distribution of a Controlled Subctanco)
Cr 74-16 United States of America
No. 6 Kack Harris Tlior.ir.son
(White. Slave Traffic Act)
Rodney Snow
Robert Van Sciver, re'
Cr 7-1-20 United States of f"jr,erica
6'-.^^ vs
No. 7
Bobby Joe Moore and William Noies
Saunders
(White Slave Traffic Act & Conspiracy)
Rodney Snow
Phil L. Hansen, ret.
Cr 74-22 United States of America
^.^\ vs
No. 8 William D. Bond
(UTiite Slave Traffic Act)
Rodney Snow
Phil L. Hansen, rot.
Cr 7-5-23 United States of Ajnericc
c, vs
Ko. S ' Ed Krown
Rodney Snow
Lambertus Jansen, ret.
(rrecuremont of Airline Tickets & Transportation
for PuvpOLH^; of Interstate Travel s Prostitution;
& Knticot.ie!-. c of a Fcir.a] c to Travel Intorr.taLo for
Purposes of Prostitution)
Cr "-:-2'; L'nit-ii-: States of America
Mo. IC K'.ub'':i Arthur Scttt
Rodi.cv sr.o-
Diil 1,. i:au...'n,
(V.iiito Plav,-; Iraffic Act S Enticoiv.,-1-;', ,.f a :'• i,u;T.(. )
79
Cr 7'l-25 United States of America Rodney Snow
•5,0 ■ vs
Clarence Earl Drodley Galen Ross, ret.
No . 11
(White Slave Traffic Act)
Cr 74-26 United States of America Rodney Snow
Melvin Kay Meads Thoraas P. Vuyk, ret.
No. 12
(Unlawful Possession of Unregistered Firearms)
Cr 74-27 United States of Ar.ierica Rodney Snov;
'^ John Earl Vv'orthen Galen Ross, ret.
No. 13
(Interstate Transportation of Stolen
Securities; ai.cl False Statement to
Government Agency)
Cr 74-28 United States of Araerj.ca Rodney Snow
, vs .
/ •-''
No. 14 ^ Orin Vern Allen and Edwin L. Allen " =;;rhil L. Hansen, ret.
(Theft of Mail)
Cr 74-29 United States of Pj-.-.erica Rodney Snow
vs
I. '^
^ Norvin Tod Tripple, Richard Bryan Thomas R. Ri onquir-t ,rft
No. 15 Hollauay, and Richard Eldon Dolise Kenneth RoLr.cy, rot.
(Receiving Stolen Property
Transported in Interstate Con-imerce)
Keith Biesing::r, ret.
Cr 74-30 United Stator, of Anierica Rodney Snr.;
vs
No. IG Emil Clcmonr., Jr. Sumner J. ll.itch, rot.
(Internal Kevonuo Code)
80
Cr 74-33 United State:; ot Aniciica Rodney Cnow
vs
^^ -^-j Rox E. Feuntal and David V. Pack Robert Van Sciver, rot.
(Taking I'orc Miqratory Birds Than Allowed)
Cr 74-36 United States of /jnerica Rodney Snow
vs
No, 13 Cari'.ielo Santiago Cruz Phil L. Hansen, ret.
(Distribution of a Controlled Substance)
Cr 74-43 United States of iVnerica Rodney Snow
vs
No. 19 Grover Adelbert Sponable Jerome Kooiicy , ret
(Theft of Baggage from an Interstate Carrier)
United States District Court for the District of Utah — Central Division
United States of America v. Will Henry Savage, Jr.
No. CR 75-26
Take notice that the above-entitled case has been set for Jury trial at Salt
Lake City, Commencing : on Tuesday, October 21, 1975, at 10 :00 A.M. before
Honorable Willis W. Ritter, 250 U.S. Post Office & Courthouse Building.
Date : October 20, 1975.
Verl C. Ritchie,
Clerk.
To: Rodney G. Snow, Asst. U.S. Attorney, 200 U.S. Post Office & Courthouse
Building, Salt Lake City, Utah 84101.
Stanford S. Smith, Esq., 225 South 200 East, Salt Lake City, Utah 84111.
Will Henry Savage, Jr., 429 Sego, Salt Lake City, Utah Mill.
To the Defendant : By Order of Chief Judge Willis W. Ritter, the defendant is
directed to appear at the Office of the U.S. Marshal, Room 244, U.S. Courthouse,
Salt Lake City, one-half hour prior to the time listed for court appearance.
In the United States District Court for the District of Utah Central
Division
United States of America, plaintiff, vs. Will Henry Savage, Jr., defendant
CR-75-26 — Motion for Continuance on the Grounds That Witnesses Have Not
Been Secured
Comes now Rodney G. Snow, Assistant United States Attorney, for and on
behalf of the United States of America, and hereby moves this honorable Court
for a continuance in the above entitled case, and for good cause shows the Court
as follows :
1. The United States did not receive notice of the Court's current trial calendar,
including the trial setting for the above referenced case, until the afternoon of
October 20, 1975.
2. At approximately 3 :00 P.M. on October 20, 1975, the United States Marshal
for the District of Utah had in their hands the Subpoenas for witnesses in the
above referenced case.
3. Thus far the United States Marshal for the District of Utah has been unable
to locate two witnesses in the ca.se, including one very crucial witness. The
crucial witness is Mr. Henry Allen, who was the payee of the Treasurer's check
which is the subject of this lawsuit.
81
4. The Marshal's office has worked diligently in an effort to locate Mr. Allen
and thus far has been unable to do so.
Therefore, the Government respectfully requests that the trial setting of the
above referenced case be continued.
DATED this 21st day of October, 1975.
Ramon M. Child,
United States Attorney.
Rodney G. Snow,
Assistant United States Attorney.
In the United States District Couet for the District of Utah Central
Division
United States of America, plaintiff, vs. Will Henry Savage, Jr., defendant
CR-75-26 — Order of Dismissal
Came on for trial on October 22, 1975, the defendant being present and repre-
sented by counsel, Stanford S. Smith, Esq., and the defendant being ready for
trial, and the Government being represented by Assistant United States Attorney
Rodney G. Snow, and the Government not being ready for trial in view of the
fact that it had been unable to locate a crucial witness ; now, therefore,
IT IS HEREBY ORDERED that the above referenced case is dismissed.
DATED this 31st day of October, 1975.
Willis W. Ritter,
Chief Judge, United States District Court.
CASES WHERE DEFENDANT HAS BEEN ARRESTED BUT NO INFORMATION OR INDICTMENT FILED AS OF MAY 10, 1976
Case no.
Number of
defendants
Arrest
date
Days since
arrest
75-0207
Jan. 5, 1976
Dec. 22,1975
Jan. 30,1976
Feb. 11,1976
Jan. 30,1976
Mar. 30, 1976
Apr. 14,1976
Jan. 22, 1976
Jan. 8, 1976
Mar. 25, 1976
136
75-0278
150
76-0023
101
76-0025 -
89
76-0027
101
76-0030
41
76-0038 .
26
75-0162
109
76-0001
133
76-0022
46
CASES WHERE DEFENDANT HAS BEEN SERVED WITH SUMMONS BUT NO INFORMATION OR INDICTMENT FILED
AS OF MAY 10, 1976
Case no.
Number of
defendants
Date
summons
served
Days since
service
75-0269
Dec. 16,1975
Feb. 10,1976
Feb. 12,1976
Feb. 14, 1976
Feb. 12,1976
146
76-0024 - -
90
76-0033
88
76-0039
86
76-0041
92
82
CASES WHERE INFORMATION OR INDICTMENT FILED BUT NO ARRAIGNMENT HELD AS OF MAY 10, 1976
Number of Days since
Case no. defendants Information or indictment filed iilmg
CR-75-132 1 Dec. 4, 1975 (indictment) - 158
CR-76-1 2 Jan. 13, 1975 (misleading information) 128
CR-76-10 1 Jan. 27, 1976 (misleading information) 114
CR-76-12" 1 Feb. 9, 1976 (misleading formation) 91
CR 76-13 1 Feb. 23 1976 (misleading information) -- 77
CR-76-14" 2 Feb. 20 1976 (misleading information) 80
CR-76-15 - 2 Feb. 23, 1976 (misleading information) 77
CR-76-16 1 do II
CR-76-17 1 Feb. 4, 1976 (indictment-rule 20) 96
CR-76-18 - 1 Feb. 27, 1976 (misleading information) 73
CR-76-19'" 1 Mar. 15, 1976 (misleading information) 56
CR-76-20 1 Mar. 17, 1976 (petty office information) 54
CR-76-23 3 Apr. 7, 1976 (petty office information) 33
CR-76-24 3 do 33
CR-76-25 1 Apr. 14, 1976 (misleading information) ^b
CR-76-26 1 do 26
Ix THE United States District Coxibt fob the Disteict of Utah, Central
Division
CR 75-72
United States of America vs. Gerald Mountainlion and Ronnie Appawoo,
defendants.
Salt liAKE City, Utah,
November 7, 1975.
Before : The Honorable Willis W. Ritter, Chief Judge.
Steve Suarr, Esq., Assistant United States Attorney, appearing on behalf of
the United States.
W. Robert Wright, Esq., appearing for the defendant Mountainlion.
Charles C. Brown, Esq., appearing for the defendant Appawoo.
MOTION FOB DISMISSAL
The Court. All right, now, Mr. Wright, what do you want to talk about ?
Mr. Wright. Your Honor. I have been appointed to defend a defendant by the
name of Gerald Mountainlion in another case, which is No. 24 on your calendar.
He is charged with aggravated assault, the same charge that was made against
the defendant, Mr. Casey, in a case just heard by the Court. We have made the
same motion upon the same grounds that have been made by Mr. Brandt Wall,
and we move the Court for dismissal on the grounds that are set forth in our
motion and our memorandum, these being that the statute upon which Mr.
Mountainlion is charged is unconstitutional in that it unlawfully discriminates
against him as an Indian.
The Court. You are not representing your client very good. You are over-
looking something that a practical man ought to think about. The defendant in
the preceding case was in jeopardy.
Mr. Wright. I recognize that.
The Court. He was confronting a jury. Now you are pushing your luck here.
If I rule on this motion before you confront a jury and that constitutional ques-
tion is litigated for the next ten years and goes up to the Supreme Court of the
United States and in the meantime the Government amends, you have done your
client a very great disservice, because there is no bar to him being prosecuted.
Mr. Wright. Well, that is a possibility. Your Honor.
The Court. It is not only a possibility. That is what will happen. Now, I have
been trying to handle all these eases on this calendar by having a jury in the
box there and not listening to your arguments about anything. You push in here
now at a time when the motion isn't even set down for argument, and you have
got your client in a fix where he may be twice tried for this thing. Now, that is
poor legal representation from my point of view, and I am going to do what I
can to protect him against his counsel, and we will just keep that right where
it is and get a jury for you one of these days, and when we get the matter up
before the jury we will get far enough down the way with the evidence to see
83
what is involved and then we will entertain your motion. I don't \\-ant to be
trying these cases again. I am interested in the court docket as much as I am
the Indian boy, but he ought to have the benefit of double jeopardy defense. If
he is prosecuted once that ought to be enough. That will be all.
CERTIFICATE
This is to certify that the foregoiULC is the official transr-ript of the arguments
of counsel and ruling of the Court on the motion for dismissal in the at)ove-
entitled cause, and that the same is a true and accurate transcript.
Lekoy Walker.
In the United States District Court for the District of Utah
Central Division
UNITED states OF AMERICA, PLAINTIFF, V. RICK O. RASMUSSEN, DEFENDANT
CR 75-10— Plea
Salt Lake City, Utah, March 24, 1975.
Before. The Honorable Willis W. Ritter, Chief Judge.
Max D. Wheeler, appearing on behalf of the plaintiff. The defendant appeared
without counsel.
Mr. Wheeler. This is a petty offense, your Honor. It's illegal entrance on
military reservation. Apparently his attorney is not here.
The Court. Do you have an attorney?
The Witness. I have a lawyer. He didn't think it was necessary to come.
The Court. If you have an attorney we will have to have him here. What
kind of petty offense was it? We don't entertain those petty offenses up there
on the reservation. How did that one get in here?
Mr. Wheeler. The defendant in this case was found on the military reserva-
tion in possession of a controlled substance. He was issued a bar letter, as they
call it, barring him from further entry on the reservation. Subsequent to the
issuance of that letter, he did enter.
The Court. What's the controlled substance got to do with it?
Mr. Wheeler. That initiated his bar from the reservation, your Honor. This
happened some time ago, before I came in.
The Court. I don't think this case will last very quick. I think it will go out
the door with wheels under it. I can't take your plea here without your attorney.
Is he coming or what?
The Defendant. No. He didn't feel it was necessary for him to come. He
wanted me to come and plead and set a trial date.
The Court. Tell him I send my regards. Tell him to get down here. You go
down and take a seat. Get hold of that attorney.
John Bucher appeared on behalf of the defendant.
The CouTJT. This is a petty offense. Are you ready to plead?
The Defendant. Yes, your Honor.
The Clerk. How do you plead to the information, guilty or not guilty?
The Defendant. Not guilty.
The Court. Good. That's what you should do. There's a question whether I'm
going to handle it or not. I may throw it out. I don't take these petty offenses,
you see. The military up there ought to run that reservation. They ought to run
it. And when they find out they can't run it. at that point, particularly with
respect to traffic offenses, they can't manage the traffic up there, so they want
me to be a traffic policeman, traffic examiner, and dish out dollar-and-a-half fines,
that sort of business. I'm not going to do it. It looks to me like this thing ought
not to be here.
Mr. Snow. I felt, your Honor, that the petty offense justified the Court's atten-
tion under the circumstances.
84
The CouKT. The plea is not guilty. That's a proper plea in this case, and we'll
look at your cards when we get it on the calendar, and I think chances are that
you won't have a big enough hand to stay in the game.
Mr. BucHEB. Thank you.
CEBTIFICATE
I, Janice Mitsunaga, CSR. do hereby certify that the foregoing is a true and
correct transcript of proceedings in the above-entitled matter.
Dated at Salt Lake City, Utah, this 8th day of May, 1975.
Janice Mitsunaga, CSR.
Criminal Docket, United States District Court
CR 75-10
THE UNITED STATES VS. KICK 0. RASMUSSEN
ATTORNEYS
For U.S.: Max D. Wheeler, Asst. U.S. Atty., 200 U.S. Post Office & Courthouse,
Salt Lake City, Utah 84101
For Defendant: John Bucher, Esq. (ret.). Suite 271 Cottonwood Mall, 4835
Highland Drive, Holladay, Utah 84117
PROCEEDINGS
Petty Offense Information, filed. Summons issued.
Notice of Arraignment on 2/7/75 at 10 :00 A.M. mailed.
Marshal's return showing service of Summons on 1/31/75, filed.
Notice mailed vacating this matter off of the Rule Day Calendar- for 2/7/75.
Notice mailed of Arraignment on Monday, March 24, 1975 at 10 '.00 A.M.
Came on for arraignment. Def. entered a plea of not guilty. This case set on
trial calendar.
Transcript of Plea, March 24, 1975, filed.
Notice mailed of Jury Trial commencing 10/21/75 at 10 :00 A.M.
Came on for calling of jury trial calendar on 10/21/75. Mr. Bucher, on behalf
of his client waived jury trial in this matter. Motion granted. This matter tried
to the court on 10/21/75. Evidence taken. After completion of the plaintiff's case,
defendant moved for judgment of dismissal and acquittal. Court granted the
dismissal of the action.
The cases wherein the defendants refused to waive indictment are :
United States v. Aiono, Mag. No. A-75-97.
United States v. Huffman, Mag. No. A-75-176.
United States v. Larsen, Mag. No. A-75-187.
United States v. Manzanares, Mag. No. A-75-202.
In the United States District Court for the District of Utah Central
Division
motion for empaneling of a grand jury
Ramon M. Child, United States Attorney for the District of Utah, respectfully
requests this Honorable Court that a grand jury be summoned to serve within
the Central Division of the United State District Court for the District of Utah,
commencing February 5, 1976 ; this Motion and Request is made upon the ground
and for the reason that the public interest requires consideration by a grand
jury of matters pending in the office of the United States Attorney, including
the current necessity of investigating Federal offenses within the District, the
need for presentation of matters concerning persons who have recently refused
to waive indictment, and investigation of certain matters concerning the Anti-
trust Division of the Department of Justice with regard to alleged violations
of the Antitrust laws of the United States within the Central Division of the
Federal Court for the District of Utah.
This Motion is brought pursuant to the provisions of Rule 6 of the Federal
Rules of Criminal Procedure.
Respectfully submitted this 23rd day of January, 1976.
Ramon M. Child,
United States Attorney, District of Utah.
85
In the United States District Court for the District of Utah
Central Division
order in re grand jury empaneled FEBRUARY 10, 1975
Upon the advice of the United States Attorney that all matters originally set
for presentation to the above Grand Jury have been presented and have resulted
in return of Indictments, with certain exceptions hereafter particularly
described.
It Is Hereby Ordered that the matters hereafter presented to the Grand Jury
empanelled in the Central Division, District of Utah, on February 10, 1975,
shall be limited exclusively to the following subject-matter, some portions of
which the Grand Jury has already commenced investigating :
1. That certain investigation of antitrust violations, consisting of price fixing
and other anticompetitive conduct in the egg industry in the District of Utah,
which has been the subject of ten days of proceedings before the Grand Jury
to this date.
2. Those certain investigations of antitrust violations, consisting of price
fixing and other anticompetitive conduct, in the grocery and beef industries in
the District of Utah, with respect to which an initial group of subpoenas have
heretofore been issued and initial production of documents has to date supplied
more than 200,000 documents.
3. That certain investigation of fraud in the acquisition of approximately
eight million dollars of Small Business Administration funds for the use of,
or transmitted through, a certain Small Business Investment Company, with
respect to which an initial group of .seventy-three subpoenas duces tecum have
heretofore been issued and in response to which more than two thousand docu-
ments have been produced to date.
4. That certain investigation of fraud in the acquisition of moneys from the
Veterans Administration by a local corporation offering certain correspondence
courses and classes for Veterans, with respect to which an initial group of sub-
poenas has been issued and at least three full days of testimony heard by the
Grand Jury.
5. Presentation of evidence for indictment of those persons who, while the
Grand Jury is empanelled, refuse to waive indictment.
Dated this 25th day of April, 1975.
By The Court :
"Willis W. Ritter,
Chief Judge, United States District Court, District of Utah.
In the United States District Court for the District of Utah
REQUEST that GRAND JURY BE ALLOWED TO REMAIN IN SESSION, AND THAT THE
COURT'S ORDER OF APRIL 25, 1975, LIMITING THE MATTERS WHICH MAY BE PRE-
SENTED TO THE GRAND JURY BE QUASHED
Comes now Ramon M. Child, United States Attorney for the District of Utah,
and respectfully requests this Honorable Court to permit the Grand Jury em-
panelled on February 10, 1975 to continue to sit, and to conclude matters now
pending before it.
It is also respectfully requested that this Court's Order of April 25, 1975, which
limits the matters which the United States Attorney's Office may present to the
Grand Jury be vacated in order that the United States Attorney's Office may
present other matters to the Grand Jury which the public interest requires the
Grand Jury to con.sider.
Dated this 4th day of December, 1975.
Ramon M. Child.
United States Attorney.
In the United States District Court for the District of Utah
BEFORE : the HONORABLE WILLIS W. RITTER, CHIEF JUDGE
Report of the Grand Jury, Thursday, December 4, 1975, Salt Lake City, Utah.
For the Government: Ramon M. Child, United States Attorney, 200 U.S.
Courthouse, Salt Lake City, Utah 84101.
Podney G. Snow, Assistant U.S. Attorney.
For the Grand Jury : Lund, Foreman.
86
SALT LAKE CITY, UTAH, THURSDAY, DECEMBER 4, 1975, 2:20 P.M.
The Court. I assume this grand jury has a report.
Mr. Snow. They do have a report, your Honor.
The Court. Come up here.
Mr. Child. May I approach the bench?
The Court. Yes.
( Unreported bench conference between Court and counsel. )
The Court. I understand you have a report, Mr. Foreman.
The Foreman. Yes, I do, your Honor.
The Court. All right. Would you read it.
The Foreman. "We, the grand jurors duly impaneled, sworn, and charged in
said court on the 10th day of February 1975, respectfully report as follows :
"That the Grand Jury has been in .session since February 10, 1975, and at
each and every session thereof there have been in attendance all of the grand
jurors so impaneled and sworn, with the following exceptions, excused from
attendance as indicated on the report.
"That at each and every session thereof there have not been less than 16 mem-
bers in actual attendance.
"That we have considered 5 alleged violations of the statutes of the United
States ; that we have found 4 true bills, which are returned herewith into court,
properly endorsed by the Foreman of the Grand Jury ; and that we have de-
clined to return indictments on zero cases presented.
"In addition, the Grand Jury is currently considering other matters presented
by the United States Attorney, but is not ready to report on them at the present
time, it being the intention of the Grand Jury that as soon as the other matters
have been presented in full the Grand Jury will make a further report to the
Court."
The Court. Well, the district attorney got his oar in on that one, didn't he.
Mr. Child. I think not, your Honor.
The Court. You mean you didn't draw that document?
Mr. Child. I didn't draw it. Mr. Snow has been attending the Grand Jury.
Mr. Snow. That's the standard form we've always used, your Honor.
Mr. Child. It's probably the same language as the last report the jury did.
The Court. I don't think so, but it doesn't make any difference now.
Thank you very much. Is there any
Mr. Child. Your Honor, I have the 4 indictments that were returned by the
Grand Jury, and I move that they be received by the Clerk.
The Court. All right. They may be filed. And I .suppo.se you want warrants
issued, do you, or not?
Mr. Child. Yes, your Honor. We want summonses issued on 3 of them.
Mr. Snow. They're all summonses, your Honor. We request summonses.
The Court. Summonses will issue. And there are no secret indictments, I sup-
pose?
Mr. Child. There are not.
The Court. Is there bail recommended?
Mr. Snow. No bail has been recommended.
The Court. All right. Then you report to the Clerk and take your seat ; and
I'll say a few things to the Grand Jury.
You have been serving this Court since last February, as your foreman just
told me, and you have served us well, and this is much longer than I ordinarily
keep a Grand Jury. I was persuaded to keep you folks longer because of matters
that the Government wanted to present.
Now, some of those matters have not yet been presented ; and on at least one
there has been some testimony before you which has not been completed that the
Government told me they would complete by December, and they have failed to
complete that. They have carried on no investigations for several months, as a
matter of fact.
And so I think we should discharge the Grand Jury; and I hereby do so, and
I do it with the thanks of the Court, and I'll say to you that you have .served
us real well; and I hnve the honor and the position thnt I occupy here of repre-
senting the people of the United States of America, and I want to thank you for
your assistance in the administration of justice on the criminal side of this court.
Drive carefully on your way home. Tliis is the end of your service. Go to the
Clerk's Office when you leave the courtroom, and be sure to give the clerks the
information necessary, so they can get your pay voucher to you. You're excused.
87
The Foreman. Could I take a moment of your time, please?
The Court. Sure.
The Foreman. The Grand Jury would like to thank you for the opportunity that
we have had of serving as federal grand jurors in representing the people of the
United States of America ; but we are deeply concerned, and we have been for
some time about the fact of unfinished business.
We haven't felt it a hardship, you know, to meet and to act in this capacity ;
and we would like to at this time, with your permission, to complete the investi-
gations that we still haven't completed.
The Court. Well, I think I'm acquainted with that, and I've already alluded
to it.
So we will do as I say.
You're discharged. Go to the Clerk's Office.
I, Ronald F. Hubbard, official reporter in the U.S. District Court, do hereby
certify the preceding transcript to be true and correct, set forth this 27th day of
February 1976, at Salt Lake City, Utah.
RoNAXD F. Hubbard.
January 23, 1974.
Hon. Willis W. Ritteb,
Chief Judge, United States District Court.
C. Nelson Day,
United States Attorney.
Cases which need to be presented to a Grand Jury and cases which merit Grand
Jury investigation.
In response to your request, find attached a list of cases which this office needs
to present to a Grand Jury. Hopefully the list is complete ; however, there may be
other cases presented to this office by the various investigative agencies which
will need Grand Jury attention.
We feel that many of the cases on the attached list merit a thorough Grand
Jury investigation, and in the White Slave Act cases we need to make firm the
testimony of the various victims. Several of these victims have been beaten and
threatened.
The stock fraud cases are complicated and involved and will take some time
to untangle. Some of the potential defendants listed may be innocent of any
wrong doing and consequently will not be indicted. However, each stock fraud
case needs to be thoroughly investigated.
lu view of the complexity of the matters to be presented to the Grand Jury,
we would appreciate having the Grand Jury .sit at a different time than the trial
of the criminal ca.ses now pending and on your present calendar. If the present
criminal jury trial calendar is to follow the present civil jury calendar, as we
understand it will, may we suggest that the Grand Jury be convened in the next
two or three weeks in order that we may present these cases to the Grand Jury
while the civil calendar is in process. Due to the difficulties in locating witnesses
and getting them here, we will need at least two weeks' notice, prior to commence-
ment of the Grand Jury proceedings.
Your attention and consideration is very much appreciated.
Senator Burdick. Just a minute. I have a question or two. Mr. Child,
much of your testimony, particularly at the point where I interrupted
and thereafter, deals with the activities or the actions of Judge Ritter
as a trial judge. And you understand that this subcommittee would
have no authority to do anything about his actions as a trial judge.
We're dealing only with his action or conduct as the judge in charge
of — as tlie chief judge.
And I think the statute involved here only applies to chief judges.
Do you understand that, Mr. Child ?
Mr. Child. I do.
Senator Burdick. And the misconduct, if any, as a sitting trial
judge, would not be within the jurisdiction of this Committee.
Mr. Child. This is correct. May I respond ?
88
Senator Bukdick. Now, you first referred to the fact that you had
difficulty in setting calendars and so forth, but I want to call your
attention to title 28, section 332, subparagraph (d) : "Each judicial
council shall make all necessary orders for the eiiective and expedi-
tious administration of the business of the courts within its circuit.
The district judges shall promptly carry into effect all orders of the
judicial council."
Apparently he has had some problems about the trial date in crim-
inal cases. Except .for appeals in individual cases and except for ap-
plications for extraordinary writs, have you asked the judicial
council of the 10th circuit for orders regulating the setting of
criminal cases for a trial under the section I just read, section 332?
Mr. Child. No ; we have not.
Senator Burdick. If S. 1130 were enacted — that's the bill before us —
the word "Chief" would be eliminated from Judge Hitter's title and
if we were to eliminate that, would your problems in the central dis-
trict be solved ?
Mr. Child. They would not be 100 percent solved, but it would be
75 percent solved.
Senator Burdick. It wouldn't solve those cases where he acted as a
trial judge; would it?
Mr. Child. No; those cases that were actually in his court for trial,
it would not solve. However, it would solve the situation of the grand
juries; it would solve the situation of the magistrates; it would solve
the situation of the trailing calendars without notice because rules
could be adopted.
He refuses to adopt rules and in a two-man district, it's impossible
for the associate judge to stand against that. The associate judge him-
self doesn't publish rules, but he abides by certain written rules that
were adopted by a predecessor.
Senator Burdick. And that's why this committee would like to con-
fine ourselves to those areas that have particular application to the
bill before us.
Mr. Child. Yes.
Senator Burdick. The matters relating to the convening and func-
tioning of a grand jury in the central division of Utah are involved
in the mandamus proceedings commenced on April 21 of this year
in the Court of Appeals of the 10th Circuit.
As a result of that action, a grand jury was empaneled on IMay 10
and the court of appeals has retained jurisdiction over the mandamus
proceedings pending further developments. Is this correct ?
Mr. Child. This is.
Senator Burdick. And is that matter now pending?
Mr. Child. It is. And Judge Ritter has empaneled that grand jury
and empaneling that grand jury he gave them a charge which cut
the gronnd out from under them and told them that they were archaic
and evil and that, in truth and in fact, that the United States and the
country of Nigeria, are the only countries in the world that still hang on
to the grand jury system, that it is a bad system, and that the real
system ought to be allowing trial judges to listen to these matters
and they have better expertise land experience to deride whether a
crime has been committed and the grand jury should be abolished.
89
And I then took the grand jury into the grand jury room and you
can imagine that they wondered why they were meeting.
Senator Burdick. My point is that the Circuit Court of the 10th
Circuit still retains jurisdiction over the matter?
Mr. Child. Yes ; fortunately.
Senator Burdick. On page 20 of your statement you take exception
to Judge Rittor's asking for a list of persons under investigation by
the grand jury. You object that this constitutes judicial interference
with the executive branch, yet you seem to suggest that this subcom-
mittee should set itself up as a body to judge the propriety of judicial
actions on his part during the subcommittee consideration of 1130.
Aren't both of these matters in violation of the separation of powers'?
Mr. Child. I'm sorry, Mr. Chairman, but I didn't follow^ the ques-
tion. I apologize.
Senator Burdick. I'll read it again. On page 20 of your statement,
you take exception to Judge Bitter's asking for a list of persons under
investigation by the grand jury. Your objection was that this con-
stituted judicial interference with the executive branch — you, as the
prosecutor. Yet you seem to suggest that this committee set itself up
as a body to judge the propriety of judicial actions as part of the sub-
committee consideration.
Mr. Child. Xo. I don't ask this committee to act as a judicial body,
but I'm pointing out to this committee that the grand jury, by statute, "is
supposed to have broad powers and it's not supposed to be limited by a
judge. It's supposed to be independent and he attempts to dictate what
it will do by asking a predisposition of what cases will be called, if he
calls a grand jury.
He attempts to control the function of the U.S. attorney and desires
to be the prosecutor, as well as the judge.
Senator Burdick. I'm sure you're aware that this presents us with a
very difficult jurisdictional problem here, since really the conduct of a
judge is not directly involved ; otherwise, it would be an impeachment ;
would it not ?
Mr. Child. That is correct.
Senator Burdick, Mr. Westphal, do you have any questions ?
Mr. "Westphal. Yes, Mr. Chairman. Thank you. In looking over the
material that you presented and that's been presented by other wit-
nesses, we have had a little difficulty in analyzing the precise issue here,
because if this bill passes, the exemption that was accorded to Judge
Bitter and 31 other judges back in 1958 would be removed and he
would no longer be the Chief Judge of the U.S. District Court for the
District of Utah.
The other judge would, I assume, become the chief judge of that
court; is that true?
]Mr. Child. I would assume, yes.
Mr. Westphal. Judge Bitter, however, would still remain as a judge
of the District Court of Utah in regular active service ; would he not ?
Mr. Child. He would.
Mr. Westphal. He would still be sitting as a trial judge?
]\Ir. Child. He would.
Mr. Westphal. Under the Judicial Council order he would still be
the judge in charge of criminal cases and proceedings in the central
division of Utah ; would he not ?
90
Mr. Child. I would think that situation would soon change.
Mr. Westphal. How would it change ?
Mr. Child. There would be a new chief judge and under the new
chief judge and the rights that he has under the statutes, as I read
them, he would have the privilege of assigning cases. He would have
that privilege until it was demonstrated that there was a dispute
between the judges.
At that point, the dispute would be resolved by the 10th Circuit and
I assume that the 10th Circuit would not necessarily leave the situa-
tion's it was between Judge Christensen and Judge Ritter some 15
to 20 years ago.
Mr. Westphal. Well, I would suggest that we might look at section
137 of the statute, and assuming that the other judge becomes the
chief judge, section 137 of title 28 provides "that the business of a
court having more than one judge shall be divided among the judges
as provided by the rules and orders of the court. If the district judges
in any district are unable to agree on the adoption of rules or orders
for that purpose" — that is, for the purpose of dividing the business
and assigning the cases — "the Judicial Council of the Circuit shall
make the necessary orders." So that if S. 1130 is enacted into law, the
second judge in Utah would be the chief judge. Judge Eitter would
still be a judge in regular, active service.
I assume that since they have been unable to agree since the year
1958 that they would continue to be unable to agree on the division
of the business of the court for as long as Judge Ritter would be a
judge in regular active service. Is that a proper assumption?
Mr. Child. I don't believe so. I don't accept the assumption. I believe
that the new judge wdio took Judge Christensen's place and had Judge
Christensen still been the judge and thus become chief judge, you
would have seen a great difference. The new judge, a junior judge,
having to work and — bends over backward to keep the peace within
the District.
If he, then, were given the mantle of chief judge so that he could
control the hiring of the court clerks, of which we don't have one^
it's hard to keep them — so that he could control the hiring of tlie
staffs, he, with that mantle of authority, could stand up and express
what he wants.
As it is, he accepts what is there.
Mr. Westphal. The chief judge in Utah cannot get what he Avants
in the way of division of business or the assignment of cases. Under
the statute, it takes the agreement of the two judges and if the two
judges are unable to agree, it is then left up to the judicial council
of the circuit. And you're assuming that if the other judge becomes
the chief judge, then for some reason Judge Ritter and he will be able
to agree, when they haven't been able to agree since 1957.
Mr. Child. Mr. Westphal, you're assuming facts that are not in
evidence. The junior judge at the present time has only been there
approximately 4 years. As such, there is no disagreement because he
will not disagree with the chief judge under any circumstances.
If he were the chief judge, he would express his independent
opinion.
Mr. Westphal. And, if his independent opinion differed with the
independent opinion of Judge Ritter, there w^ould be a disagreement
91
between the two judges on the division of business and the assignment
of cases and the judicial council would still have to exercise its powers
under the statute ; would they not?
Mr. Child. The judicial council would do so and I feel that they,
given the opportunity, would rectify the problems that we have now\
Mr. Westphal. Well, they have attempted to rectify that problem
beginning in 1958 with their order which assigned to the two judges
of Utah an equal and an impartial divison of civil cases and gave to
each judge the power to preside over criminal cases and proceedings,
each in his own division — Judge Ritter in the central division and
the other judge in the northern division.
Mr. Child. And as it worked out, the central division has about
80 percent criminal load and it would have more if we could prose-
cute. Judge Ritter, at that time, was 18 years younger than he is
now. He cannot now carry the load he did 18 years ago — and he does
a marvelous job in some of the cases that he has.
Mr. YfESTPHAL. The point, ]Mr. Child, is this. If Judge Ritter were
not the chief judge, he would still be the resident judge in the cen-
tral division. He would still be the trial judge in that division. He
would still handle his share of the civil cases on trial. He would still
handle criminal cases and proceedings in the central division; would
he not ?
Mr. Child. He would only until the then chief judge took issue
with that situation and asked for a change.
Mr. Westphal. The chief judge cannot take away from Judge Rit-
ter the power to sit as an active district court judge. The judicial
council of the 10th Circuit cannot take aw^ay that power. This was
determined in the Chandler case, as I understand.
Now, the point I'm trying to get at is how the situation would change
if you simply remove the word "chief" from Judge Ritter's title. He
would still be an active judge. If the Government were not prepared
to proceed with prosecutions, he would still dismiss them. In the
absence of an order from the judicial council saying that he must
give you the 21 days' advance notice of the setting of a calendar of
criminal cases for trial, he would still be giving you either 6 days or
3 days or no day's notice.
How would it change if he were not the chief judge?
Mr. Child. What you failed to, in my opinion, take consideration
of is that by removing the name "chief" from one judge, you don't
just leave it out in limbo. You assign the name "chief" to another
judge and that judge, thus, given this mantle of authority, besrins to
administer the problems of the district — not just the division, but the
district. And those problems, once he has that mantle of authority,
are his responsibility.
And Judge Anderson, whom I assume would then be the chief
judge, would take issue with the way these courts are run and would
require the imposition of written rules of the court. He handles his
calendar in a very different way and, as chief judge, he would have
: great influence on this court.
Mr. Westphal. I would assume that the adoption of local rules of
court is a matter that has to be voted by the court, as distinguished
from being voted by one judge of the court. So it would take the agree-
92
ment of the two judges— Judge Ritter and Judge Anderson, you say?
Mr. Child. Yes. ^ t j j^
Mr Westpiial. In order to adopt local rules ot court. 1 don t per-
ceive under the statute that the chief judge has the power to impose
his will upon the second judge in the district; am I wrong?
Mr. Child. Is it not apparent that absent that agreement, the judi-
cial council of the 10th Circuit steps in ?
Mr. Westphal. Well, there has apparently been no agreement on
adoption of local rules of court for these many years in Utah and up
to this point the judicial council of the 10th Circuit has not stepped
in order to adopt local rules generally for Utah or even to adopt
a special rule saying how much notice they must give to the U.S. dis-
trict attorney prior to setting a group of criminal cases for trial ; isn't
that true ?
Mr. Child. This is true.
Mr. Westphal. You mentioned this matter of the underutilization
of magistrates. I was interested in reading some correspondence in-
cluded with Judge Lewis' statement concerning the development of
the implementation of the Magistrate Act in the district of Utah.
And in an early letter Judge Eitter advised that he intended to
make full use of the new magistrate system in Utah, that he out-
lined the type of duties that would be assigned to the magistrate,
including the trial of petty offenses, and he also pointed out that in
his judgment he thought that Utah needed two full-time magistrates
and he expressed some reservations about the use of part-time magi-
strates for trial purposes because they would still be able to, as a part-
time magistrate, practice law. And he felt that that might lead to
conflict of interest.
Now, that correspondence also indicates that the judicial confer-
ence did not agree with his recommendation and did not, in fact, au-
thorize any full-time magistrates for Utah. It did, however, au-
thorize— and I think as agreed by Judge Hitter and the other judge —
to have a halftime or $11,000 magistrate at Salt Lake City and an
$8,500 part-time magistrate at Ogden with two minor ones, one at
Cedar City and one at Provo.
After that was authorized, the magistrates at Cedar City and Provo
were never appointed so that that authority was repealed by the judi-
cial conference in about 1973. And then the part-time magistrates
were not assigned any petty offense jurisdiction. They were assigned
very little, if any, of the discretionary duties under section 636(b) of
the statute.
And, in fact, the magistrates, such as they have had there in Utah,
have performed basically only the duties that used to be performed
by a U.S. Commissioner, except for the trial of petty offenses. Then
at some point in 1974 or so, apparently both of the Utah judges and
the judicial council of the 10th Circuit felt that the two part-time
positions at Ogden and Salt Lake City and should be combined into
a full-time magistrate and that, then, would meet Judge Ritter's initial
feeling and would probably overcome his perception that a part-time
magistrate is subjected to a conflict of interest.
But as I understand the record, the judicial conference still did
not feel that there should be a full-time magistrate. Is that pretty
much the situation ?
93
Mr. Child. Yes. We're going backward on the magistrate situation
in Utah. We now only have one half time. We no longer have two half-
times; we now have one halftime.
Mr. Westphal. Now, as I understand the statute on the petty offense
jurisdiction of a magistrate, it requires that the court designate or
specifically allot and authorize that magistrate to try these petty
offenses that are permitted under section 3401 of title 18.
Now, your objection is that Judge Ritter, as chief judge, has not
authorized that and apparently there's been no agreement between
Judge Ritter and the other judge that the magistrate should be au-
thorized petty offense jurisdiction; is that the situation?
Mr. Child. I have spoken with the other judge, who said to me
last Friday that he's in favor of the magistrates having this
jurisdiction.
Mr. Westphal. I say, there's no agreement between the two of them.
Judge Ritter is obviously opposed to the exercise of this petty offense
jurisdiction.
Mr. Child. Obviously.
Mr. Westphal. But the statute apparently does give to the judges of
the court the discretion as to whether they will or will not authorize
the magistrate to hold this petty offense jurisdiction.
Mr. Child. Correct. It requires the chief judge to approve it.
Mr. Westphal. Are you suggesting that this committee should
determine whether Judge Ritter abused his discretion in failing to
authorize magistrates in Utah to exercise petty offense jurisdiction?
Mr. Child. I would suggest, rather, that this committee look at the
fact that because of his age and predisposition. Judge Ritter has
merely failed to do it and that the need is present.
Mr. Westphal. Well, some of these things date back to a time before
he was even 70 years of age,
Mr. Child. There we get to predisposition.
Mr. Westphal. Well, again, you're talking about predisposition.
You're talking about the man's conduct as a sitting judge and, again,
doesn't this get us into an area w^here, under the constitution, the
House has initial jurisdiction?
You're talking about grounds for removal. You're not talking about
whether a "grandfather clause" should be repealed,
Mr. Child. Mr. Giuliani indicates that he would like to answer that,
if it would be all right.
Mr. Westphal. "What is your answer, ISIr Giuliani ?
Mr. Gitjliaxi. INIr. Westphal, I think there is no doubt that there
may be a question here about Judge Ritter's conduct as a judge. xVnd
there's no doubt that an awful lot of what Mr, Child put to you in-
volved his misconduct as a judge. And I think a lot of that is relevant,
but you have a different question.
The question is — a question that Avas addressed in 1958 and is being
addressed again : Does this man or should this man serve with the dual
function of chief jud^e and sitting judge ? There's no doubt that a
change in the law will not solve all or nearly all of the problems cre-
ated by Judge Ritter. But that doesn't mean that it will not solve
some.
78-678 O - 76 -
94
And the issue that it seems to me is before this committee is whether
this exemption tliat now exists, for one man and tor one man alone, is
a valid one.
For instance, Judge Kitter now presides over grand juries. Over
the last 5 years, those grand juries have sat for 57 days, which in my
view, virtually extinguishes the criminal justice system in the ^tate
of Utah.
Mr. Westphal. But that's a matter that you have now pending for
determination by the 10th circuit under your petition for preemptory
writ of mandamus over which proceeding the 10th circuit has retained
jurisdiction.
Mr. GiULiAXi. There's no question about that, I don't cite that for
you to determine the merits or the demerits of our petition for man-
damus. I cite it as an example of why Judge Ritter cannot function
beyond the age of 70 as the chief judge of the State of Utah.
Mr. Westphal. As I understand it, his views about the functioning
of a grand jury are not something that he has just believed in in the
last year or two. This is a problem that went back before he ever
reached age 70. He has always had different views about the proper
scope of the grand jury.
Mr. Giuliani. I don't know whether that is true or isn't true. Mr.
Child tells me that it isn't. And I don't know what his views of it
were when he was 69 and 68 and 67. I do know that we now have a
77-year-old judge presiding over the court in Utah who hasn't con-
vened a grand jury but for 57 days in the last 5 years.
Mr. Westphal. All right. Let me ask you : "How many times in the
last 5 years has the U.S. attorney in Utah, in cooperation with the
Justice Department, petitioned the 10th circuit for a preemptory writ
of mandamus requiring Judge Ritter to convene a grand jury?"
Mr, Giuliani, It happened on at least one other occasion ; didn't it,
Mr. Child ? At that point he convened a grand j ury for a short period
of time ; is that correct ?
Mr. Child. That is true. There was some discussion going on, as I
recall, in the tenure of C. Nelson Day — preliminary. And it was just
being discussed in the courthouse that they were about to go after a
mandamus, at which time he did call a grand jury for a short period.
Mr. Westphal. Again, do you have a grand jury that sits in the
northern division? Do you convene one in the northern division?
Mr. Child. I'm happy you asked me that. Judge Anderson and be-
fore him, Judge Christensen, have grand juries sitting in the northern
division at all times.
And it's a shame. We only really need one grand jury in the State of
Utah.
Mr. Westphal. If Judge Ritter is not the chief judge, he would still
be the presiding judge in the central division and he will still have the
power to either convene or not to convene a grand jury : isn't that true ?
Mr. Giuliani. I think that's a question that you have put on sev-
eral of these things and I think the difference that would be created
by Judie Ritter no longer being the chief judge would be that the new
chief judge could initiate rules to solve these problems.
Chief Judjre Ritter would then be in a position of having to object
to those rules and they can be resolved by Judicial Council. And I
think that is a much better posture to be in than having a junior judge
95
objecting to the practices of a senior judge and asking him to initiate
it.
Mr. Westphal. Did either Judge Christensen, when he was on the
bench, or Judge Anderson, when he was on the bench, even though
they were junior, did they ever attempt to initiate local rules and, upon
the failure of the two of them to agree on local rules of court, refer
the matter to the Judicial Council under section 332 ? Was that ever
done, to your knowledge ?
Mr. Child. To my knowledge, the question of local rules was not
presented to the Judicial Council. It may have been. However, Judge
Christensen adopted his own, since he couldn't get along with Judge
Ritter. Judge Anderson has not seen fit to cross Judge Ritter in that.
]\Ir. A^'estphal. You also, in your testimony, object, Mr. Child, to
a trailing calendar practice, which I suppose another word for it is a
"general calendar." You list the cases in order on the calendar and
you start trying the first one; when that's out of the way, you try the
second one, and so on.
jNIr. Chiij). Correct.
Mr. Westphal. Now, apparently Judge Ritter believes in that kind
of a general trailing calendar and you would like either certain settings
or a little more understanding from the judge as to when he is going
to commence that calendar in light of your requirements for obtaining
witnesses ; isn't that correct ?
Mr. Child. Yes. It is not necessarily the trailing calendar that
bothers me. It's the lack of notice and the inflexibility of insisting on
trying the cases in their order.
Mr. Westphal. Well, again, but he would exercise that power and,
I assume, make the same rulings if he were an active judge, as he now
does, even though he did not have the title, chief judge.
Mr. Child. Oh, yes. He could do things like that and it would upset
our office. However, I do believe that district court rules could be
adopted, which he doesn't adopt. He prefers not to have written rules.
Mr. Westphal. I understand that. The mere repeal of the "grand-
father clause" isn't going to cure it unless the other judge proposes
some local rules of court, unless the Judicial Council intervenes upon
their failure to agree.
Mr. Child. That's right.
Mr. Westphal. I have no further questions, Mr. Chairman.
Senator Bukdick. Thank you very much. Their statements will be
made a part of the record without objection.
Senator Burdick. Our next witness is Robert B. Hansen, deputy at-
torney general. Salt Lake City. Welcome to the committee. Mr. Hansen.
Mr. Haxsex. Thank you, Chairmann Burdick and Mr. Scott and
Mr. Westphal.
STATEMENT OF ROBERT B. HANSEN, DEPUTY ATTORNEY GENERAL.
SALT LAKE CITY
Mr. Haistsen. I appreciate the opportunity to testify here today. I
know the issue is repeal of the grandfather clause for chief judges. Let
me put the question in perspective. As you know, repeal of this clause
affects only one man : Judge Willis W. Ritter. In fairness to this com-
mittee and in fairness to Judge Ritter, you should know that the
96
amendniont's repeal to many would be a mild slap at the judge at a
time he deserves a knockout punch.
The tenth circuit court of appeals Chief Judge David T. Lewis, who
supports repeal, says that this hearin.o: should be based on equity and
reason and not on "whether Judge Ritter is a good, bad, or indifferent
judge."
It would be good if we could separate the man and the issue. We can-
not. If it were not for the judge's questionable actions, there would
have lieen no effort to find a legal loophole to at least strip him of his
chief judgeship.
The fact that Utah even had a chief judge as early as it did is tied
to the controversy surrounding Judp^e Hitter. When be was appointed
in 1049, he was the only Federal judge in the State. The appointment
followed a bitterly debated confirmation hearing.
The American Bar Association opposed the appointment. Senator
Arthur Watkins — you'll recall he was the Senate Judiciary Committee
member who chaired the INIcCarthy hearings — did not block the nomi-
nation as J)e could have, but he did vote against it.
Four years later Utah got its second Federal judge : Judge A. Sher-
man Christensen. It was not because of the caseload that the second
judge was added. Former Gov. J. Bracken Lee says there is no ques-
tion the second judgeship was created to offset Judge Ritter.
Another observer at tlie time said the Utah bar thought some new
blood might make it a viable court. Is the court viable today ? In late
1972, as part of research for a book, a questionnaire was sent to mem-
bers of the Utah bar. The results are shown here on this chart, which
were computer compiled by a Utah polling firm.
Three hundred and ninety-seven responded. As to the judge's record,
13 percent rated it excellent ; 12 percent said it was good ; 8 percent,
average ; 25 percent said poor ; and the largest category of respondents,
30 percent, rated his record as very poor.
They rated the judge's judicial temperament : 6 percent said he was
always fair; 9 percent said usually fair; 24 percent said he was oc-
casionally biased; and 49 percent said the judge was usually biased.
The question was asked : Should Judge Ritter retire as chief judge?
Sixty-eight percent said "Yes." It is interesting to note that the survey
spurred the Utah State bar to take an official poll of its own 1 year
later. They received back 1,049 responses. The poll shows 77 percent of
the bar wanted Ritter to step down as chief judge, a figure much higher
than the earlier survey.
The first questionnaire allowed attorneys to make comments. One
said, "The judge dispenses judicial tyranny rather than justice," An-
other said, "Judge Ritter was an excellent legal educator, however, he
is not equipped with the proper temperament to be a judge." Yet an-
other said, "he suffers from egomania."
Ironically, the same criticisms leveled now against Judge Ritter
were raised 27 years ago at his confirmation hearings. Then, H. Grant
Ivins. District Director of the Office of Price Administration, testified
that Ritter, who served as OPA Regional Rent Director, was arbitrary,
tyrannical, ari'ooant, and abusive.
It was the FBI report that probably heated up the hearings more
than anything else. In fact, the report was the key in Senator Watkins
delaying confirmation for several months. The Senator said the report
97
raised serious questions as to the integrity and the morality of the
nominee.
The present sheriff of Salt Lake County, Delmar Larsen, was one
of the FBI agents who wrote that report. Five years ago, a Judge
Ritter-empaneled grand jury indicted Sheriff Larsen in a case involv-
ing the feeding of jail prisoners. The U.S. attorney, on orders from
the Justice Department, refused to sign the indictment, saying the
jury was improperly constituted.
U.S. attorney, C. Nelson Day, shortly before he died in an auto-
mobile accident, told a group of journalism students that the judge
handpicked the jurors, including foreman Maurice Warshaw. Grand
jurors, as you know, are supposed to be picked at random. Amazingly,
the same Maurice Warshaw had served on a previously Ritter-
empaneled grand jury.
We looked at the opinions of the attorneys who worked under Judge
Ritter. What do his judicial superiors think?
For a 26-year period, the judge was reversed or reversed in part
in 54 percent of those cases appealed to the circuit. That's worse
than a coin flip. Utah's other judge and his successor during that
time were only reversed or reversed in part in 18 percent and 16
percent of their cases.
Notice that the judge's bad record gets worse as he passes the age
of 70, the age he would have stepped down as chief judge, were it
not for the grandfather clause. What does the circuit court say about
these reversals?
A couple of quotes: ""WHiile the record discloses that the case was
tried in an atmosphere of maximum emotion and a minimum of
judicial impartiality * * *" and so on. Again : "Throughout the trial,
the court assumed a hostile attitude toward representatives of the
United States to such an extent that this court is of the view that a
fair trial was not had."
Now, on this third chart we have here a graph of the number of
writs filed against Judge Ritter since he turned age 70. I've compared
Judge Ritter's record with the man who has the next worse record
in the 10th circuit. Judge Chandler of Oklahoma.
During the same time Judge Christensen and his successor, Judge
Alden J. Anderson, were only filed on once. The other 20 judges of
the circuit received a total of 99 such writs. It is evident that Judge
Ritter's conduct is objected to over 5 times as often as the average
of all other judges and 30 times as often as the Utah district court
judfife.
Since Judge Ritter turned 70 years of a are, he has had 39 writs filed
against him, of which 8 were granted. He has served 23 percent of
his time on the bench since turnin.qr age 70 and has received 78 percent
of said writs during this time. Of all of the writs that have been
granted against Judge Ritter from the time he has been on the bench,
73 percent of those writs granted were during the time that Judge
Ritter has been 70 vears of age and older.
T^Hiat do some of the attorneys sav when they ask the judge to be
removed from a case? One said, "The Honorpble Willis W. Ritter
is so antagonistic and hostile to the affiant * * * that it will be im-
possible for Judge Ritter to preside over this case * * * ."
98
In 1972, Salt Lake City petitioned to have the judge removed
from their case whicii involved tlie police commissioner who is an
attorney. The city argued that Judge Kitter improperly belittled
the commissioner years earlier during a case he was arguing.
The commissioner lost in Kitter's court and the ruling was reversed.
Since then, the city says the judge held a personal grudge and feeling
of animosity against the atliant * * * .
The most serious charge against Judge Ritter is that he has certain
favorite or "pet" attorneys who appear in his court ; that certain law
firms enjoy a better chance of winning than others.
As deputy attorney general, I must live with that reality in
protecting the State's interests. Utah has often gone to the additional
expense of hiring an outside attorney, usually from the Salt Lake
firm of Van Cott, Bagley, whenever we have an important case before
Judge Ritter.
In fact, this past January, I told Utah's legislative appropriation
committee that that was why we needed a $50,000 supplemental
appropriation. We received it.
A recent Utah magazine article that I have here quoted an attorney
who said, "Knowledgable clients will go to certain lawyers because
they are more likely to win — in front of Ritter — or at least get kinder
treatment and favorable rulings." The charge, if true — and I have
testified and do testify that it is— is a shocking commentary on Utah
legal community. Instead of censoring a bad judge, many attorneys
would instead take advantage of the bias, if they enjoy "pet" status.
It's much like a parent whose son chops down the neighbor's trees.
Instead of correcting the child's fault, the parent takes advantage of
it and sells the trees for firewood. The parent's crime is greater than
the child's.
Let me explain further by moralizing a bit xiiore. If a judge needed
the services of a law firm for personal legal help, it would be wise for
him to select a firm with little or no Federal practice. However, if
he did retain a law firm which often engages in Federal practice, it
would then be wise for the judge to bow out of any cases involving
that law firm.
Judge Ritter has failed to follow such a standard. In fact, in the
past few years he or his family has employed the services of no less
than three Salt Lake City firms — Van Cott, Bagley, Cornwall &
McCarthy: Jones, Waldo, Holbrook & McDonough; and Worsley,
Snow & Christensen.
Each of these firms have a very substantial Federal practice. The
court records show that Judge Ritter continued to hear cases presented
by these law firms at the same time they were representing him or
his family.
The record also curiously shows that rarely did these three firms
engage in trials against each other. I could ^o on and on and talk about
other areas involvin<T Ritter's conduct as cliief judge, such as the ab-
sence of court rules. His is the only district in our circuit without rules
of court. I have personally observed on many occasions where this has
led to fiascoes, a few of them reported by the press : his orders restrict-
ing access to court records, one of which our office was involved with;
his orders undulv restricting press coverage of his court. I hope you
or your staffs will take the time to read parts of this State brief and the
99
magazine that I have here that Avould give further specifics on these
matters.
[The above referred to documents follow.]
[Note. — Magazine article is reproduced as exhibit to statement by
Senator Garn.]
100
IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 74-1036
STATE OF UTAH,
Plaintiff,
vs.
WILLIS W. RITTER, CHIEF JUDGE IN AND
FOR THE UNITED STATES DISTRICT
COURT IN AND FOR THE STATE OF UTAH,
Defendant.
ON PETITION FOR WRIT OF MANDAMUS OR IN
THE ALTERNATIVE FOR A WRIT OF PROHIBITION
BRIEF IN SUPPORT OF THE PETITION FOR
THE STATE OF UTAH
VERNON B. ROMNEY,
Attorney General
ROBERT B. HANSEN,
Deputy Attorney General
JOSEPH P. McCarthy,
Assistant Attorney General
RANDOLPH S. COLLINS,
Assistant Attorney General
Attorneys for Plaintiff
101
TABLE OF CONTENTS
Page
JURISDICTION 1
QUESTIONS PRESENTED 2
STATEMENT OF FACTS 2
ARGUMENT 4
POINT I. THE STAY OF CIVIL DISCOVERY
PROCEEDINGS TO ALLOW THE CRIMINAL
CASE TO BE DISPOSED OF FIRST SHOULD
HAVE BEEN GRANTED BY THE COURT .... 4
POINT II. THE MOVANTS FOR DISCOVERY IN
THE CIVIL ACTION HERE FAILED TO
MEET THE BURDEN NECESSARY TO SHOW
"GOOD CAUSE," HENCE THE "PUBLIC IN-
TERESTS" AND THE "INTERESTS OF JUS-
TICE" REQUIRED GRANTING OF THE STAY
OF CIVIL PROCEEDINGS UNTIL THE STATE
CRIMINAL CASE IS CONCLUDED 8
POINT III. THE UNLIMITED SCOPE OF CIVIL
DISCOVERY ALLOWED BY THE RESPON-
DENT JUDGE WAS CONTRARY TO LAW
AND THIS COURT SHOULD DIRECT THE
RESPONDENT TO LIMIT IN THE FUTURE
SUCH CIVIL DISCOVERY IN ADDITION TO
ORDERING THE DELAY REQUESTED UN-
TIL THE TRIAL OF THE CRIMINAL CASE .. 23
POINT IV. CIVIL DISCOVERY IS APPLICABLE
TO CIVIL CASES ONLY AND NOT CRIM-
INAL CASES 30
POINT V. THE BURDEN OF SHOWING "GOOD
CAUSE" FOR INSPECTION OR DESIGNAT-
ING SPECIFIC EVIDENCE HAS NOT BEEN
MET IN THIS CASE AS ALREADY SHOWN
OR BY STATE LAW 37
102
TABLE OF CONTENTS— Continued
Page
POINT VI. PROSECUTING ATTORNEY'S
NOTES, MEMORANDA, FILE OR "WORK
PRODUCT" ARE NOT SUBJECT TO DISCOV-
ERY PROCEDURE 39
POINT VII. IT IS NOW CLEAR THAT NEITHER
THE FEDERAL NOR THE STATE COURTS
WILL COMPEL BY CIVIL DISCOVERY
METHOD THE DISCLOSURE OF MATERIAL
FORMING THE BASIS OF CRIMINAL PROS-
ECUTION 41
CONCLUSION 43
Table of Cases Cited
Anderson v. State, 207 Tenn. 486, 341 S. W. 2d 385 39
Anderson v. State, 239 Ind. 372, 156 N. E. 2d 384 40
BaUey v. State, 227 Ark. 889, 302 S. W. 2d 796, 355 U. S.
851, 2 L. Ed. 2d 59, 78 S. Ct. 77 30,31
Bedami v. State, 112 So. 2d 284, 361 U. S. 883, 4 L. Ed.
2d 119, 80 S. Ct. 153 41
Brown v. Commonwealth, 90 Va. 671, 19 S. E. 447 40
Campbell v. Eastland, 307 F. 2d 478, 371 U. S. 955, 83 S.
Ct. 502, 9 L. Ed. 2d 502 4, 9, 13
Campbell v. United States, 174 A. 2d 87 40
Dinsmore v. State, 61 Neb. 418, 85 N. W. 445 41
Edens v. State, 235 Ark. 178, 359 S. W. 2d 432, 371 U. S.
968, 9 L. Ed. 2d 538, 83 S. Ct. 551 31, 40
Edens v. State, 235 Ark. 996, 363 S. W. 2d 923 31
Erving v. State, 174 Neb. 90, 116 N. W. 2d 7, 375 U. S.
876, 11 L. Ed. 2d 121, 84 S. Ct. 151 41
Fuller V. United States, 65 A. 2d 589 41
11
103
TABLE OF CONTENTS— Continued
Page
Hopper V. People, 152 Colo. 405, 382 P. 2d 540 40
Howard v. State, 174 Neb. 90, 116 N. W. 2d 7, 375 U. S.
876, 11 L. Ed. 2d 121, 84 S. Ct. 151 41
Jackman v. State, 140 So. 2d 627 41
Johns V. State, 157 Fla. 18, 24 So. 2d 708 41
Linder v. State, 156 Neb. 504, 56 N. W. 2d 734 38
McAden v. State, 155 Fla. 523, 21 So. 2d 33, 326 U. S.
723, 90 L. Ed. 429, 66 S. Ct. 28 41
Melchor v. State, 404 P. 2d 63 39
Metros v. U. S. District Court, 441 F. 2d 313 1
Peel V. State, 154 So. 2d 910 40
Penn. v. Auto. Ins. Co., 27 F. Supp. 336 18
People V. Bermis, 2 Cal. 270, 40 P. 2d 823 40
People V. Calandrillo, 29 Misc. 2d 491, 215 N. Y. S. 2d
361 38
People V. Cathey, 186 Cal. App. 2d 217, 8 Cal. Rptr. 694 40
People V. Cooper, 53 Cal. 2d 755, 3 Cal. Rptr. 148 39
People V. Gatti, 167 Misc. 545, 4 N. Y. S. 2d 130 39
People V. Giles, 31 Misc. 2d 354, 220 N. Y. S. 2d 905 .... 40
People V. Leahey, 26 Misc. 2d 438, 207 N. Y. S. 2d 619 .. 38
People V. Lindsay, 227 Cal. App. 482, 38 Cal. Rptr. 755 32
People V. MarshaU, 6 N. Y. 2d 823, 188 N. Y. S. 2d 213,
159 N. E. 2d 698 38,39
People V. MarshaU, 5 App. Div. 2d 352, 172 N. Y. S. 2d
237, 6 N. Y. 2d 823, 188 N. Y. S. 2d 213, 159 N. E.
2d 698 41
ill
104
TABLE OF CONTENTS— Continued
Page
People V. Martinez, 15 Misc. 2d 821, 183 N. Y. S. 2d 588 39
People V. Murphy, 412 lU. 458, 107 N. E. 2d 748, 344
U. S. 899, 97 L. Ed. 695, 73 S. Ct. 281, 350 U. S.
865, 100 L. Ed. 767, 76 S. Ct. 108 40
People V. NewviUe, 220 Cal. App. 2d 267, 33 Cal. Rptr.
816 38
.People V. Ratten, 39 Cal. App. 2d 267, 102 P. 2d 1097 .. 31
People V. Terry, 57 Cal. 2d 538, 21 Cal. Rptr. 185, 370
P. 2d 985, 375 U. S. 960, 11 L. Ed. 2d 318, 84 S.
Ct. 446 38
People V. Wilkins, 135 Cal. App. 371, 287 P. 2d 555 32
Raulerson v. State, 102 So. 2d 281 41
Redmond v. City Court of Salt Lake City, 17 Utah 2d
95, 404 P. 2d 964 42
Rosier v. People, 126 Colo. 82, 247 P. 2d 448 38
Securities & Exchange Comm'n v. Control Metals Corp.,
57 F. R. D. 56 9
Securities & Exchange Comm'n v. Great Plains Ac-
ceptance Corp., 35 F. R. D. 24 12
State V. American Stock Transfer Co., et al., (Criminal
case pending in Utah State District Court) 3
State V. Aubuchon, 381 S. W. 2d 807 38, 41
State V. Baders, 141 Kan. 683, 42 P. 2d 943 35
State V. Brown, 360 Mo. 104, 227 S. W. 2d 646 39
State V. Bunk, 63 A. 2d 842 40
State V. Cocheo, 24 Conn. Sup. 377, 190 A. 2d 916 33
State V. Cochran, 3 Ohio St. 2d 125, 209 N. E. 2d 437 .. 35
State V. Colvin, 81 Ariz. 388, 307 P. 2d 98 39, 40
iv
105
TABLE OF CONTENTS— Continued
Page
State V. Fox, 122 Vt. 251, 169 A. 2d 356 3b
State V. Furthmyer, 128 Kan. 317, 277 P. 1019 40
State V. GiUiam, 351 S. W. 2d 723, 376 U. S. 914, 11 L.
Ed. 2d 612, 84 S. Ct. 670 39
State V. Goldberg, 261 N. C. 181, 134 S. E. 2d 334, 377
U. S. 978, 12 L. Ed. 2d 747, 84 S. Ct. 1884 39
State V. Goodman, 207 Kan. 155, 483 P. 2d 1040 34
State V. Haddad, 221 La. 337, 59 So. 2d 411 41
State V. Hale, 371 S. W. 2d 249 39
State V. Hill, 193 Kan. 512, 394 P. 2d 106 40
State V. Jeffries, 117 Kan. 742, 232 P. 873 33
State V. Jones, 282 Kan. 31, 446 P. 2d 851 35
State V. Kelton, 299 S. W. 2d 493 40
State V. Laird, 79 Kan. 681, 100 P. 637 41
State V. Lee, 173 La. 966, 139 So. 302 39
State V. Martinez, 21 Utah 2d 187, 442 P. 2d 943 42
State V. Marzbanian, 2 Conn. Cir. 312, 192 A. 2d 721,
197 A. 2d 944 40
State V. MiUer, 88 Ohio L. Abs. 533, 176 N. E. 2d 296,
172 Ohio St. 554, 18 Ohio Ops. 2d 93, 179 N. E.
2d 53 41
State V. Richette, 342 Mo. 1015, 119 S. W. 2d 330 39
State V. Roy, 23 Conn. Sup. 342, 183 A. 291 41
State V. Salvatore, 23 Conn. Sup. 459, 184 A. 2d 551 .... 41
State V. Stack, 118 Utah 128, 221 P. 2d 852 42
State V. Stump, 254 Iowa 1181, 119 N. W. 2d 210, 375
U. S. 853, 11 L. Ed. 2d 80, 84 S. Ct. 113 38
V
106
TABLE OF CONTENTS— Continued
Page
State V. Superior Court, 208 A. 2d 832 40
State V. Tune, 13 N. J. 203, 98 A. 2d 881 39, 40
State V. Wallace, 97 Ariz. 296, 399 P. 2d 909 38
State V. Williams, 211 La. 782, 30 So. 2d 834 41
State V. Zimmaruck, 128 Conn. 124, 20 A. 2d 613 40
State ex rel. Keast v. District Court, 135 Mont. 545, 342
P. 2d 1071 37,38
State ex rel. Mahoney v. Superior Court, 78 Ariz. 74,
275 P. 2d 887 37
State ex rel. McLetchie v. Laconia District Court, 205
A. 2d 534 40
State ex rel. Regan v. Superior Court, 102 N. H. 224,
153 A. 2d 403 40
United States v. A. B. Dick Co., 7 F. R. D. 442 11, 19
United States v. Bridges, 86 F. Supp. 931 18
United States v. Garsson, 291 F. 646 43
United States v. Jordan, 399 F. 2d 615 16
United States v. Kessler, 61 F. R. D. 11 17
United States v. Kordel, 397 U. S. 1, 25 L. Ed. 2d 1, 90
S. Ct. 763 26
United States v. Leta, 60 F. R. D. 127 15
United States v. Linen Supply Institute, 18 F. R. D.
452 11
United States v. Maine Lobstermen's Assn., 22 F. R. D.
199 11
United States v. One 1964 Cadillac Coupe, 41 F. R. D.
352 21
United States v. Steffes, 35 F. R. D. 24 12
vi
10-
TABLE OF CONTENTS— Continued
Page
United States ex rel. Touhy v. Ragen, 340 U. S. 462,
95 L. Ed. 417, 71 S. Ct. 416 24
Urga V. State, 104 So. 2d 43 41
Walker v. People, 126 Colo. 135, 248 P. 2d 287 37
Walker v. Superior Court, 155 Cal. App. 2d 134, 317 P.
2d 130 38
Yannacone v. Municipal Court, 222 Cal. App. 2d 72, 34
Cal. Rptr. 838 32,39
Federal Statutes
Jencks Act, 18 U. S. C. A., § 3500 4
Nationality Act, 1940, § 338, 8 U. S. C. A. § 738, 18
U. S. C. A. §§ 371, 1015(a) 18
Sherman Anti-Trust Act 19
8 U. S. C. A. § 738 18
18 U. S. C. A. § 371, 1015(a) 18
28 U. S. C. A. § 723(c) 20
§ 1651 1
State Statutes
California, Code of Civil Procedure 31, 32
Kansas, Code of Civil Procedure, R. S. 60-2850; 62-
1413 33
Kansas, Code of Criminal Procedure, 1970 34
Ohio, Revised Code, § 2317-33 35, 36
Utah State Statutes
Utah Code Ann. § 67-16-4 (1953) 30
vii
108
TABLE OF CONTENTS— Continued
Page
Utah Code Ann. § 105-21-9(1) (1943) 42
Utah Code Ann. § 77-29-9 (1953) 42
Federal Court Rules of Procedure
U. S. Court of Appeals, Rule 21 1
Rules of Civil Procedure, 28 U. S. C. A.:
Rule 26 18
Rule 26(c) 2
Rule 30 11
Rule 33 18, 20
Rule 34 9
Rule 35(b) 2
Rules of Criminal Procedure, 18 U. S. C. A. 11
Supreme Court Rules of Evidence, Rule 509(a), 34
L. Ed. 2d 54 27
Advisory Committee Notes, 34 L. Ed. 2d 54, 55, 56 29
Regulations
Title 28, Code of Federal Regulations (1973), Judicial
Administration 30
Department of Justice Rules
Department of Justice Rules Covering Judicial Ad-
ministration, Chapter I, Code of Federal Regula-
tions, Title 28, 1973 29
Part 16 29
Subpart B 29
§§ 16.22, 16.23, 16.24 29
viii
109
IN THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 74-1036
STATE OF UTAH,
Plaintiff,
vs.
WILLIS W. RITTER, CHIEF JUDGE IN AND
FOR THE UNITED STATES DISTRICT
COURT IN AND FOR THE STATE OF UTAH,
Defendant.
ON PETITION FOR WRIT OF MANDAMUS OR IN
THE ALTERNATIVE FOR A WRIT OF PROHIBITION
BRIEF IN SUPPORT OF THE PETITION FOR
THE STATE OF UTAH
JURISDICTION
This Court has jurisdiction and authority to issue the
requested reUef of the within petition pursuant to U. S.
Code, Title 28, Section 1651, Rule 21 of the Rules of Pro-
cedure for the United States Court of Appeals, and inherent
powers of supervision over local courts. Metros v. U. S. Dis-
trict Court for District of Colorado, 441 F. 2d 313 (10th
C. C. A., 1971).
no
QUESTIONS PRESENTED
1. Is petitioner entitled to a continuance of the depo-
sition to be taken of an Assistant Attorney General until
the disposition of the State Criminal Court proceeding on
the basis of prejudice to that prosecution?
2. Is petitioner entitled to a protective order to limit
the discovery available to the defendant in the subject State
criminal case to that permitted under applicable State law?
STATEMENT OF 7ACTS
1. Petitioner has instituted criminal proceedings in
the District Court of Salt Lake County, State of Utah,
against one John J. Badger and others. See Exhibit "A",
made a part of the petition.
2. On January 15, 1974, WiUiam J. Ungricht, Assist-
ant Attorney General, was served with a subpoena to com-
pel his attendance and production of documents at a depo-
sition scheduled for January 31, 1974. The subpoena duces
tecum is attached to the petition marked Exhibit "B". It di-
rects the Assistant Attorney General Ungricht to "bring
with you all books, transcripts, documents, notes and mem-
oranda concerning Flying Diamond Corporation which are
in your possession."
3. On January 23, 1974, the Attorney General of the
State of Utah moved the Honorable Willis W. Ritter for a
motion, pursuant to Rule 35(b) and Rule 26(c), F. R. C. P.,
to quash the subpoena, or in the alternative, to issue a
protective order. This motion wiU be found as Exhibit
"C" to the petition. The grounds of this motion are
that the subpoena calls for the production of docu-
Ill
merits, memoranda and work products of the Utah
State Attorney General, and his staff, which have been
assembled in connection with the criminal investigations;
that as Assistant Attorney General he prepared and inter-
viewed all concerned in connection with his duties and is
presently serving as prosecutor in the pending criminal ac-
tion entitled, "State v. American Stock Transfer Co., Jay
Victor Miller, Evelyn Mitchener, Michael Halfhill and John
J. Badger"; that the attorney seeking the deposition is
attorney of record for the defendant Badger in the State
case, but represents a different party in the federal civil
action; that the deposition is sought not only for the pur-
pose of obtaining evidence in that case, but for use in the
pending State criminal action. A hearing was held by the
lower court and on January 28, 1974, the motion was de-
nied.
On January 30, 1974, the petitioner, through its Attor-
ney General, moved the lower court for an order that the
said deposition be continued until after the trial of the
aforesaid criminal case. The grounds of this motion
are that the taking of said deposition will be prejudicial
to the public interests and rights of the State of Utah inas-
much as the said deposition will enable counsel in the
State criminal case to obtain discovery beyond that al-
lowed by the laws of the State of Utah. This motion
is attached to the petition and is marked Exhibit "E", Jan.
30, 1974. The lower court denied this motion on February
1, 1974, and a copy of the order is attached to the petition
marked Exhibit "F".
On page 3 of the petition, it is stated: "It is the strong
belief and opinion of the undersigned that the relief re-
112
quested in this petition is not only critical to avoid prejudice
and injury to petitioner in the instant criminal proceeding
but that other criminal proceedings will be prejudiced in
the future if [a] defendant's counsel can utilize federal civil
suits as a means of obtaining discovery in criminal cases
beyond that allowed by Rule 16, R. F. C. P., and other
applicable laws," whether such suits are bona fide or not.
POINT I.
THE STAY OF CIVIL DISCOVERY PRO-
CEEDINGS TO ALLOW THE CRIMINAL
CASE TO BE DISPOSED OF FIRST SHOULD
HAVE BEEN GRANTED BY THE COURT.
Campbell v. Eastland, 307 F. 2d 478 (5th C. C. A.
1962, cert, denied, 371 U. S. 955, 83 S. Ct. 502, 9 L. Ed. 2d
502), is the leading case. There the Director of Internal
Revenue refused to produce reports of agents who had in-
vestigated the tax frauds; U. S. Attorney having been so
ordered by his superiors to make such refusal, he, therefore,
was not defiant, acted in "good faith," in a civil discovery
proceeding. The Director had asked for a stay of civil dis-
covery proceedings to allow the criminal case to be disposed
of first, claiming privilege of the reports, the motion for
discovery being a "cover-up" to allow taxpayers to inspect
criminal files for information not available to them before
trial of the criminal case except under the strict rules of
criminal procedure, and the Jencks Act, 18 U. S. C. A.
§ 3500. The District Court granted the taxpayers' motion
upon the ground that, if a civil suit is bona fide, it should
be kept separate from the criminal action. The Circuit
Court at pages 483, 485-487, said:
113
". . . ITiis is the fatal defect in the proceedings
below (p. 483).
"There are times, however, when the Government,
because it is the Government, must withhold or
postpone full disclosure. This is such a time (p.
485).
". . . all discovery rules exempt privileged mat-
ter (p. 485).
• • • • •
"In handling motions for a stay of a civil suit
until the disposition of a criminal prosecution on
related matters and in ruling on motions under the
civil discovery procedures, a judge should be sensi-
tive to the difference in the rules of discovery in
civil and criminal cases" (p. 387; italics supplied).
". . . To obtain discovery of work-products, there
must be an unusually strong showing of good cause
to justify discovery of such writings; they are not
absolutely privileged. Hickman v. Taylor, 1947,
329 U. S. 495, 67 S. Ct. 385, 91 L. Ed. 451. The
District Director, however, has never claimed ab-
solute privilege; he has asked only that discovery
be postponed. The real issue, therefore, is whether
there was good cause for the order when and as it
was issued (p. 486; italics supplied).
". . . There is a clear-cut distinction between
private interests in civil litigation and the public
interest in a criminal prosecution, between a civil
trial and a criminal trial, and between the Federal
Rules of Civil Procedure and the Federal Rules of
Criminal Procedure. But these distinctions do not
mean that a civil action and a criminal action in-
volving the same parties and some of the same
114
issues are so unrelated that in determining good
cause for discovery in the civil suit, a determina-
tion that requires the v/eighing of effects, the trial
judge in the civil proceeding should ignore the
effect discovery would have on a criminal proceed-
ing that is pending or just about to be brought.
The very fact that there is a clear distinction be-
tween civil and criminal actions requires a govern-
ment poUcy determination of priority: which case
should be tried first. Administrative policy gives
priority to the public interest in law enforcement.
This seems so necessary and wise that a trial judge
should give substantisd weight to it in balancing
the policy against the right of a civil litigant to
a reasonably prompt determination of his civil
claims or Uabihties" (p, 487; itaUcs supplied).
The Court then pointed out that the criminal rules of dis-
covery are far more restrictive than the civil rules. Con-
tinuing, the Court, at page 487, said:
"... A litigant should not be allowed to make use
of the liberal discovery procedures applicable to a
civil suit as a dodge to avoid the restrictions on
criminal discovery and thereby obtain documents
he would not otherwise be entitled to for use in his
criminal suit. Judicial discretion and procedural
flexibility should be utilized to harmonize the con-
flicting rules and to prevent the rules and policies
appHcable to one suit from doing violence to those
pertaining to the other. In some situations it may
be appropriate to stay the civil proceedings ..."
(p. 487; italics suppUed).
Here, however, the trial judge seemed to think he had no
discretion — once discovery was moved for in a civil suit.
6
115
The Court, at page 488, further said:
". . . the trial judge found or — expressed the opin-
ion — that 'to be honest about it' the purpose of
the discovery was 'to see about [the] defenses in
a criminal case.' There the proceedings should have
ended, with dismissal of the motion or a stay of
the proceedings."
"Instead, the trial judge held that the suit for
refund was a bona fide suit, and as such, it was
completely 'independent' of the criminal case. If
a taxpayer files suit in bad faith, it is an abuse of
process; but his good faith on a suit for refund does
not sanctify the motion for discovery. We take the
view that whether or not the suit, as distinguished
from the motion, was bona fide, the effect of grant-
ing the motion was to give pre-trial discovery of
documents denied the taxpayer in the criminal case
. . . It was an open invitation to taxpayers under
criminal investigation to subvert the civil rules
into a device for obtaining pre-trial discovery
against the Government in criminal proceedings.
(Itahcs supplied).
This case in effect holds that civil discovery is not in-
tended to be a "backdoor" method of accomplishing crim-
inal discovery, or to subvert the limitations on it.
The Court, at page 490, stated:
"Summarizing, in balancing the individual's
right to prepare his case promptly against the
pubHc interest in withholding the full disclosure
sought here, the following elements tip the scales
in favor of the District Director: (1) discovery
would give the taxpayer possession of reports de-
nied him in the criminal proceeding; (2) there is
reason to think, 'to be honest about it', that the mo-
116
tion for discovery (if not the suit for refund) was
for the purpose of obtaining the otherwise unob-
tainable reports; (3) the Government was not the
moving party seeking to recover while withhold-
ing information that might defeat recovery; it
assessed no deficiency and asserted no counter-
claim; (4) the District Director did not claim an
absolute privilege but asked only for a reasonable
delay; (5) the record is, bare of any showing that
a reasonable delay would have prejudiced the tax-
payer in the civil suit; (6) limited discovery by in-
terrogatories and other remedies were available to
the taxpayer; ... In short, the taxpayer failed to
show good cause for the order of discovery issued
in this case.
". . . The United States Attorney, however,
acted under instructions from his superiors, made a
good faith refusal, and respectfully explained his
legal position to the Court. Notwithstanding the
trial judge's indignation, therefore, we do not have
before us a defiant litigant whose defiance as an
agent of the United States, is particularly irre-
sponsible and ill-becoming." (Italics supplied).
POINT II.
THE MOVANTS FOR DISCOVERY IN THE
CIVIL ACTION HERE FAILED TO MEET
THE BURDEN NECESSARY TO SHOW
"GOOD CAUSE," HENCE THE "PUBLIC IN
TERESTS" AND THE "INTERESTS OF JUS-
TICE" REQUIRED GRANTING OF THE STAY
OF CIVIL PROCEEDINGS UNTIL THE
STATE CRIMINAL CASE IS CONCLUDED.
8
117
The litigants in the following cases, seeking to obtain
in pending civil litigation, discovery by subpoena duces
tecum which had been secured for use in criminal prosecu-
tions then pending or about to be instituted, failed com-
pletely to show the necessary "good cause'' required for the
production of information under Rule 34.
In the Campbell v. Eastland case, supra, the Court in
some detail made it clear that the determination of "good
cause" for discovery in the civil suit, requires the weighing
of effects, and the trial judge in the civil proceeding should
not ignore the effect discovery would have on a criminal
proceeding that is pending. The Court said:
". . . If a taxpayer files suit in bad faith, it is an
abuse of process; but his good faith on a suit for
refund does not sanctify the motion for discovery.
We take the view that whether or not the suit, as
distinguished from the motion, was bona fide, the
effect of granting the motion was to give pre-trial
discovery of docimients denied the taxpayer in the
criminal case ... It was an open invitation to tax-
payers imder criminal investigation to subvert the
civil rules into a device for obtaining pre-trial dis-
covery against the Government in criminal pro-
ceedings." 307 F. 2d at page 288.
"... A litigant should not be allowed to make use
of the liberal discovery procedures applicable to
a civil suit as a dodge to avoid the restriction on
criminal discovery and thereby obtain documents
he would not otherwise be entitled to for use in
his criminal suit." Id., at page 487. (Italics sup-
plied.)
Securities and Exchange Comm'n v. Control Metals
Corp., (D. C, S. D. N. Y. Civ. Div. 1972), 57 F. R. D. 56,
9
118
was an action for injunctive relief. Sachs, one of the defen-
dants, served notices of deposition on four witnesses and
plaintiff moved for protective order to stay taking of depo-
sitions pending disposition of criminal proceedings. In ab-
sence of showing by defendant that he in fact would be
prejudiced by the delay, the District Court, at page 57, said:
". . . In that posture of affairs, defendant Sachs
served notices of deposition on four witnesses who,
as the Court is informed, are likely to be called as
Government witnesses in the current Grand Jury
proceeding and in the expected criminal action. The
Commission moved pursuant to F. R. Civ. P. 26(c)
for a protective order to stay the taking of those
depositions pending disposition of the criminal
proceeding.
"The Commission invokes the general policy
that the Court should not permit civil discovery
proceedings to be used to aid a party in a related
criminal matter, Campbell v. Eastland, 307 F. 2d
478 (5th Cir. 1962), cert. den. 371 U. S. 955, 83 S.
Ct. 502, 9 L. Ed. 2d 502 (1963), United States v.
One 1964 Cadillac Coupe DeViUe, 41 F. R. D. 352
(S. D. N. Y. 1966). Defendant Sachs, with com-
mendable candor, concedes that such hoped-for
aid in the criminal matter was a principal moti-
vation in seeking to take these depositions."
The Court granted the stay pending disposition of the
criminal proceedings.
The fact that this was an action for injunctive relief
offered no exception to the delay rule since there was no
showing of prejudice to defendant Sachs by such procedure
taken by the Court.
10
119
United States v. Maine Lobstermen's Assn., (D. C, S.
D. Maine, 1958), 22 F. R. D. 199, was a civil action by the
United States. The defendants sought to take the deposi-
tions under Rule 30, F. R. Civ. Proc., 28 U. S. C. A. of five
persons who had appeared before the grand jury which had
returned an indictment in a companion criminal case against
the same defendants. The Government filed a motion for
an order deferring the taking of the deposition, relying on
United States v. A. B. Dick Co., 7 F. R. D. 442, and United
States v. Linen Supply Institute, 18 F. R. D. 452, in both
of which the courts refused to compel the Government to
answer the interrogatories until companion criminal anti-
trust proceedings had been disposed of. The defendants
were unable to indicate any prejudice would result to them
in their civil proceeding if the Court granted deferment. The
Court determined that the defendants in the criminal ac-
tions cannot take advantage of the coincidence of a com-
panion civil case to obtain prosecution evidence which is
not available under the Fed. Rules of Crim. Proc., 18 U. S.
C. A.
The District Court, at pages 200-201, said:
". . . As the Court reads these opinions, the
requested deferments were granted by the courts
because the patent purpose of the interrogatories
was to obtain information through the medium of
the civil proceedings to which the defendants were
not entitled, or in a manner in which the defen-
dants were not entitled, under the criminal rules,
the courts being satisfied that no showing had been
made that prejudice to the rights of the defendants
in the preparation of their defense in the civil pro-
ceedings would result from the deferment.
11
120
"Counsel for the Government have also called
to the Court's attention the unreported ruling of
the District Court for the District of Columbia in
United States v. Parke, Davis & Company, Civil
Number 1064, June 26, 1957, which apparently in-
volved the precise question presented to this Court
upon this motion and in which the court ruled from
the bench that it would not permit the requested
depositions to be taken until after the trial of the
criminal case.
• • • • •
"... no prejudice to the defendants in the
preparation of their defense in this civil action
will result, and being of the opinion that defen-
dants in criminal actions caimot properly take ad-
vantage of the coincidence of a companion civil case
to obtain prosecution evidence which would not
otherwise be available to the defendants under the
Federal Rules of Criminal Procedure, 18 U. S. C. A.,
for use in the criminal case, the taking of the depo-
sitions . . . will be deferred until the companion
criminal case against these same defendants in
[the criminal case] in this Court ... is disposed
of." (Italics supplied.)
United States v. Steffes, a criminal action. No. Crim.
240, and S. E. C. v. Great Plains Acceptance Corp., a civil
suit, No. Civ. 403, 35 F. R. D. 24, (D. C, D. Montana,
Billings Div. 1964), arose out of the same conduct and
transactions which were the subject of the civil action. Mo-
tions were made by the government in the criminal case
and by the S. E. C. in the civil suit to stay proceedings in
the civil proceedings and to quash the subpoenas to take
depositions by the defendant until the disposal of the crim-
inal proceedings.
The defendant Steffes moved to strike the pleading of
12
121
the S. E. C. for the reason it was not a party to the criminal
action, that the court may not consolidate civil and criminal
proceedings and issue an order upon such consolidation of
these proceedings, and to vacate the stay of the civil suit
and to dismiss the proceedings upon the ground of no cause
shown for the issuance of the stay order.
It was admitted that the Federal Rules of Criminal
Procedure contain no provision authorizing the desired
depositions. To a large extent both parties reUed on the
same case of Campbell v. Eastland, 307 F. 2d 478, in which
case the facts of the civil action were inextricably interwoven
with those of a criminal prosecution for fraud.
The Court, at pages 26, 27, said:
". . . The plaintiff in the civil action, the taxpay-
ers, filed a motion under Rule 34 of the Federal
Rules of Civil Procedure for an order requiring the
District Director of Internal Revenue to produce
the reports of the investigating agents. The reports
were in the United States Attorney's criminal files.
The Director asked for a stay of the motion pend-
ing disposition of the criminal case. He contended
'that the reports were privileged; that the motion
for discovery was a cover-up to allow the taxpay-
ers to inspect criminal files for information not
available to them before the trial of the criminal
case and then available only under the strict rules
of criminal procedure . . .' The trial judge held
that the civil action was 'independent of any crim-
inal action' and granted the motion to produce . . .
The court of appeals reversed, pointing out that
Rule 34, F. R. Civ. P. allows discovery of docu-
ments only after showing 'good cause' and specific-
ally stated that its decisions turned on the facts
bearing on good cause.
13
122
(( (
. . in determining good cause for discovery
in the civil suit, a determination that requires the
weighing of effects, the trial judge in the civil pro-
ceeding should (not) ignore the effect discovery
would have on a criminal proceeding that is . . .
A litigant should not be allowed to make use of
the liberal discovery procedures applicable to a
civil suit as a dodge to avoid the restrictions on
criminal discovery and thereby obtain documents
he would not otherwise be entitled to for use in his
criminal suit. Judicial discretion and procedural
flexibility should be utilized to harmonize the con-
flicting rules and to prevent the rules and policies
appHcable to one suit from doing violence to those
pertaining to the other.'
"It must be remembered that the court found
that good cause had not been shown as required
for production under Rule 34. . . .
• • • • •
". . . Defendant argues further that the Camp-
bell case was concerned with an attempt to dis-
cover material privileged under the work product
doctrine, and that no privileged material is in-
volved.
*7 think the statement as to the right to take
depositions must be read in context of the whole
opinion. There the court was not concerned with
an attempt to take depositions of prosecution wit-
nesses. But in determining good cause for produc-
tion the court carefully delineated the line between
civil and criminal discovery processes. The court
did not say that Rule 26 of the Civil Rules of Civil
Procedure could be used as a device to take depo-
sitions for use in a criminal case, where the deposi-
tions could not be taken under Rule 15 of the
Federal Rules of Criminal Procedure.
"Judge Bell, who concurred specially, I think
14
123
lucidly stated the basis with which the whole court
agreed. He said: 'The criminal aspect of the mat-
ter could not be ignored. The end result was tan-
tamount to allowing discovery under Federal Rules
of Civil Procedure in a criminal proceeding, some-
thing we are powerless, as was the trial court, to
authorize.'
"But, argues defendant, depositions may be
taken under Rule 26 as a right, in the absence of
a showing of good cause for a denial thereof. I think
good cause for the stay has been shown. Just as
the court in Campbell considered the interwoven
civil and criminal factual relation in determining a
lack of good cause for production, so here the same
factors have been considered in determining that
there is good cause for the stay." (Itahcs suppHed).
In United States v. Leta, 60 F. R. D. 127, (D. C.
M. D. of Pennsylvania, July 1973) a motion was made by
defendants to compel disclosure of aU exculpatory material
and information in the possession and control of the United
States. The District Court held, inter alia, that discovery
would be denied in relation to their request for all state-
ments, memorandum and summaries of statements, record-
ings and transcriptions of statements, made by any person
to an agent of the United States or the State of Pennsyl-
vania in connection with subject matter of criminal case
and as to request by defendants that the Government dis-
close the statements of persons who were not prospective
witnesses, where, inter alia, defendants made no assertion
of materiality other than the general assertion that the
statements might be favorable to their defense, and that
the Government should disclose to defendants the criminal
15
124
records of all persons that the Government intended to call
to trial, but because of the limited purpose for which such
information could be used by defendants, the Government
would not be required to produce such records prior to
trial. The Court at pages 129-131 said:
"Defendants base the motion on the holding
in Brady v. State of Maryland, 373 U. S. 83, 87, 83
S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963).
• • • • •
"In my view. Defendant's motion goes beyond
the scope of the Brady doctrine. They not only
request disclosure of material favorable to them on
the question of guilt, but in effect they request
disclosure of all information relevant to the case.
Such wholesale disclosiire of the prosecution's case
is not required by the Constitution or statutes of
the United States.
". . . The Brady doctrine 'does not require the gov-
ernment to disclose the myriad immaterial state-
ments and names and addresses which any ex-
tended investigation is boimd to produce'." Citing
United States v. Jordan, 399 F. 2d 615.
". . . In my view, the requested items are in-
ternal government docimients the discovery of
which is precluded by F. R. Crim. P. 16 (b).
• • • • •
". . . the Court will deny Defendant's request in
§ 6 [of defendant's motion] that the Government
disclose the names and addresses of all persons who
have some knowledge of the facts of the case. No
showing of materiality or reasonableness has been
attempted."
16
125
United States v. Kessler, (D. C, D. Minn. 2d Div., July
1973) 61 F. R. C. 11, was a prosecution for misapplication
of bank funds and making false entries.
Motions for severance, for misjoinder were made, and
seeking discovery and inspection of certain reports, memor-
anda and statements in possession of the Government.
The Court held that the documents requested in the
hands of the Government were exempt from production
where they constituted internal Government reports pre-
pared in connection with the investigation and prosecution
of the case.
The Court, at pages 12-13 said:
". . . The Rule [16 F. R. Crim. Proc] excepts from
discovery 'reports, memoranda, or other internal
government documents made by government agents
in connection with the investigation or prosecu-
tion of the case, or of statements made by govern-
ment witnesses or prospective government wit-
nesses (other than the defendant) to agents of the
government except as provided in Title 18, U. S. C.
§ 3500.' Section 3500 contemplates that the state-
ments of government witnesses will be released to
defendant only after the witness has testified at
trial. [Italics supphed.] Although the affidavit
of defendant's attorney raises the possibiHty that
the rule enunciated by the Supreme Court in
Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), may be applicable, it is
our view that the prosecution is not obliged under
the Brady rule to make pretrial disclosures of ma-
terial otherwise exempt from discovery under Rule
16(b) [citing cases]. Because the requested docu-
ments are internal government reports prepared
in connection with the investigation and prosecu-
17
78-678 O ■
126
tion of this case they are exempt from production
under Rule 16(b). See United States v. Barber,
297 F. Supp. 917 (D. Del. 1969). Statements made
by employees of the First National Bank of New
Prague and of the Savage State Bank to federal
authorities need not be produced until such em-
ployees testify at trial. 18 U. S. C. 3500. [Italics
supplied.]
"Defendant's motion for separate trial and sev-
erance for misjoinder is granted;
"Defendant's motion for discovery and inspec-
tion is denied."
In United States v. Bridges, (D. C, N. D. Cal., S. Div.,
1949) , 86 F. Supp. 931, the defendant was indicted under the
NationaUty Act of 1940, § 338, 8 U. S. C. A. § 738, 18 U. S.
C. A. §§ 371, 1015(a), and the Government also instituted
de-naturalization proceedings against defendant. He in-
voked the discovery process under F. R. Civ. Proc. § 33, 28
U. S. C. A., seeking testimony of the Attorney General and
the Director of the F. B. I. under Rule 26, F. R. Civ. Proc.
"The scope of the relief sought under the Discovery Process
in the Civil Proceeding is sweeping." The Government
moved to stay the proceedings instituted by defendant un-
til final disposition of the criminal proceedings. The Court,
citing Penn. v. Auto, Ins. Co., 27 F. Supp. 336, at page
933, quoting from that case, said:
" 'Where public policy intervenes, the rule (of
discovery) should not be appHed literally, and I
have therefore denied plaintiff's motion to require
defendant to furnish the names of their witnesses
and to perimt their interrogation before trial . . .
plaintiff should not be armed with the information
18
127
in advance so as to prepare an alibi.' " (Italics sup-
plied.)
Continuing the Court then stated:
"This Court has concluded that in the exercise
of sound discretion and in the interest of public
policy that all proceedings in this action . . . are
hereby stayed until the final disposition of crim-
inal proceedings . . ." (Italics supplied.)
In United States v. A. B. Dick Co., (Civil No. 24188),
7 F. R. D. 442, (D. C, N. D. Ohio, E. D. 1947), it appeared
the defendants were indicted for violation of the Sherman
Anti-Trust Act. Simultaneously with the Grand Juiy's
presentment of the indictment, the Government filed the
instant suit against the defendants in which it seeks to
enjoin them from violation of the Act. The allegations in
the two actions are identical. The Court, at page 442, said:
". . . It is therefore logical to assume that the same
proof will be offered to support the charges con-
tained in the indictment as will be introduced to
obtain the relief sought under the Complaint.
"Motions for bills of particulars were made by
the various defendants to enlarge upon the allega-
tions of the indictment."
In the criminal phase of the cases (see 7 F. R. D. 437, Crim.
No. 18981, 1947) the Court overruled in part the motions
for the Government to furnish particulars as to certain
charges, stating that the Government cannot "be required
to make a complete disclosure of its entire case. That is
not the function of a bill of particulars. Rubio v. United
States, [22 F. 2d 766]." (ItaHcs supphed.)
19
128
In that civil suit the defendants addressed numerous
interrogatories to the Government under Rule 33, R. Civ.
Proc., 28 U. S. C. A. following section 723c, "seeking to
obtain disclosures of the written and oral evidence which
supports the accusation and the names of witnesses who
wiU testify on behalf of the Government." Id., at pages
442-443.
The Government moved for an order
"... to dismiss the interrogatories without preju-
dice to renewal upon the disposition of the pend-
ing indictment, or, in the alternative, to extend
the time of the plaintiff to file objections or to re-
spond to them until the disposition of the criminal
charges."
The Court, at page 443, said:
"It is urged in support of the motion that to
require plaintiff at this time to answer the inter-
rogatories would have the effect of circumventing
the decision of this Court on the defendants' mo-
tions for bills of particulars. It is pointed out that
the very information which the Court refused to
have furnished in the criminal case will be made
available through the response to the interroga-
tories. Plaintiff contends that the disclosure of
the information may jeopardize its position in the
prosecution and interfere with the administration
of justice.
"The defendants oppose the motion and assail
the above contentions. They maintain that the
plaintiff chose to file the civil action with the re-
turn of the indictment and hence carmot deprive
the defendants of the benefits afforded them under
the rules of discovery.
20
129
"There are no adjudicated cases which shed
light on the specific question here presented."
(Italics supplied.)
The Court stated that the sole question is whether de-
lay in obtaining answers to the interrogatories will prejudice
the rights of the defendants or whether the failure to fur-
nish the information sought until the disposition of the
criminal case wiU deprive these defendants of the benefits
bestowed by the rules of discovery. In answer thereto the
Court, at page 443, said:
". . . No compelling reasons are shown to convince
this Court that the defendant will be injured by
extending the time to file objections to or respond
to the interrogatories until the disposition of the
criminal suit."
United States v. One 1964 Cadillac Coupe, (D. C, S.
D. N. Y., 1966), 41 F. R. D. 352 was an auto forfeiture
action. A motion was made by the Government for a stay
of interrogatories in the civil discovery proceeding until
disposition of pending criminal action.
Both the civil and criminal proceedings arose out of
same or related transactions by which
". . . the Goveniment is ordinarily entitled to a
stay of all discovery in the civil action until dispo-
sition of the criminal matter. Campbell v. East-
land, 307 F. 2d 478, cert. den. 371 U. S. 955, 83 S.
Ct. 502, 9 L. Ed. 2d 502 (1963); United States v.
Bridges, 86 F. Supp. 931 (S. D. Cal. 1949); United
States V. $2,437.00 United States Currency, 36 F.
R. D. 257 (E. D. N. Y. 1964) ; United States v.
Steffes, 35 F. R. D. 24 (D. Mont. 1964); United
21
130
States V. Maine Lobstermen's Ass'n, 22 F. R. D.
199 (D. Maine 1958); United States v. Linen Sup-
ply Institute, 18 F. R. D. 452 (S. D. N. Y. 1955) ;
United States v. A. B. Dick Co., 7 F. R. D. 442 (N.
D. Ohio 1947); United States v. One 1963 Chevro-
let Sedan, Misc. No. 63-M-1239, E. D. N. Y. 1963;
Zara Contracting Co. v. New York, 22 A. D. 2d 415,
256 N. Y. S. 2d 98 (3d Dep't 1965). The justifica-
tion for this rule is that a defendant in a criminal
case should not be permitted to use the liberal civil
discovery procedures to gather evidence which he
might not be entitled to under the more restrictive
criminal rules. Campbell v. Eastland, supra." (Ital-
ics supplied.)
The claimant contended that the Government waived
the right to the protective order to which it might otherwise
be entitled since nearly three months have elapsed since
the interrogatories were served.
The Court, at page 354, said:
". . . The question thus becomes whether the
government's motion was 'seasonably made,' or al-
ternatively, whether the government's delay could
be termed 'excusable neglect'."
After reviewing the facts in regard to this delay, the
Court, at pages 354-355, said:
". . . Under the circumstances I conclude that
the laxity demonstrated by the government in this
case does not constitute a 'wilfuU' failure to serve
answers which would warrant dismissal of the ac-
tion. See Rule 37(d), F. R. Civ. P. Accordingly,
the claimant's motion to strike and dismiss is de-
nied."
22
131
". . . the claimant's interrogatories in the case
at bar are plainly directed toward securing infor-
mation regarding the legality of the seizure of the
automobile in light of Fourth Amendment criteria.
Though information of this nature is relevant in a
forfeiture proceeding, see One 1958 Plymouth
Sedan v. Com. of Pennsylvania, 380 U. S. 693, 85
S. Ct. 1246, 14 L. Ed. 2d 170 (1965), it is obviously
of paramount importance in the pending criminal
action. Under the circumstances the fact that
counsel for the government was dilatory is not a
ground for authorizing a criminal defendant to uti-
lize the discovery devices of the Federal Rules of
Civil Procedure. Cf. United States v. Summerlin,
310 U. S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283 (1940).
Thus the government's motion for a stay has been
seasonably made within the meaning of Rules 30
and 33.
"The motion for a stay of all discovery pro-
ceedings in this action until disposition of the
criminal actions presently pending is granted."
(ItaHcs supplied.)
POINT III.
THE UNLIMITED SCOPE OF CIVIL DIS-
COVERY ALLOWED BY THE RESPONDENT
JUDGE WAS CONTRARY TO LAW AND THIS
COURT SHOULD DIRECT THE RESPON-
DENT TO LIMIT IN THE FUTURE SUCH
CIVIL DISCOVERY IN ADDITION TO OR-
DERING THE DELAY REQUESTED UNTIL
THE TRIAL OF THE CRIMINAL CASE.
Independent of the motion to stay the civil proceed-
ings until after the criminal case pending in the courts
23
132
of the State has been disposed of, and until the witnesses
of the State have testified in that criminal action, the
Attorney General of Utah could have asserted here all the
power vested in him by law to refuse to obey the subpoena
duces tecum in the civil proceedings involved upon the
ground of "privilege" as being in the "best public interests"
and "in the interests of justice."
In United States ex reL Touhy v. Ragen, Warderiy 340
U. S. 462, 95 L. Ed. 417, 71 S. Ct. 416 (1951), the Court held
that the Attorney General can validly withdraw from his
subordinates the power to release department papers. It
was also held that the employee's refusal to produce the
papers was proper.
The records requested by the subpoena duces tecum
were claimed by the petitioner to contain evidence estab-
lishing that his conviction was brought about by fraud. In
these circumstances the District Court found Mr. McSwain
guilty of contempt of court in refusing to produce the rec-
ords referred to in the subpoena and sentenced him to be
committed to the custody of the Attorney General . . ." Id.,
at page 465. The Court said that the Court of Appeals in
reversing the District Court found:
". . . that Mr. McSwain was called upon *to
produce all documents and material called for in
the subpoena without limitation and that at no
time was he questioned, as to his willingness to
submit the papers for determination as to mater-
iality and best public interests.' Consequently, he
was not guilty of contempt unless the law required
the witness to make unlimited production. The
court thought that, since this last would mean
there was not privilege in the Department to re-
24
133
fuse production, such a holding should not be
made." Id., at page 466.
The Court, at page 467, said:
". . . The validity of the Superior's action is
an issue only insofar as we must determine whether
the Attorney General can validly withdraw from
his subordinates the power to release department
papers."
Continuing the Court, at page 468, said:
"... that Mr. McSwain in this case properly
refused to produce these papers. We agree with
the conclusion of the Court of Appeals that since
Mr. McSwain was not questioned on his willing-
ness to submit the material 'to the Court for de-
termination as to its materiality to the case' and
whether it should be disclosed, the issue of how
far the Attorney General could or did waive any
claimed privilege against the disclosure is not ma-
terial in this case."
". . . When one considers the variety of in-
formation contained in the files of any government
department and the possibilities of harm from un-
restricted disclosure in court, the usefulness, in-
deed the necessity, of centralizing determination
as to whether subpoenas duces tecum will be will-
ingly obeyed or challenged is obvious. Hence, it
was appropriate for the Attorney General, pursu-
ant to the authority given him by 5 U. S. C, § 22,
to prescribe regulations, not inconsistent with law
for 'the custody, use, and preservation of the rec-
ords, papers, and property appertaining to the
Department of Justice, to promulgate Order 3229.' "
25
134
In conclusion the Court, at pages 469-470, said:
". . . This case is ruled by Boske v. Comingore,
111 U. S. 459, [44 L. Ed. 846, 20 S. Ct. 701].
"That case concerned a collector of internal
revenue adjudged in contempt for failing to file
with his deposition copies of a distiller's reports
in his possession as a subordinate officer of the
Treasury. The information was needed in Htiga-
tion in a state court to collect a state tax. The
regulation upon which the collector relied for his
refusal was of the same general character as Order
No. 3229. After referring to the consitutional au-
thority for the enactment of R. S. § 161, the basis,
as 5 U. S. C. § 22, for the regulation now under
consideration, this Court reached the question of
whether the regulation centraUzing in the Secre-
tary of the Treasury the discretion to submit rec-
ords voluntarily to the Court was inconsistent
with law, page 469. It concluded that the Sec-
retary's reservation for his own determination of
all matters of that character was lawful.
"We see no material distinction between that
case and this." (Italics supplied.)
In United States v. Kordel, 397 U. S. 1 (1969), 25 L.
Ed. 2d 1, 90 S. Ct. 763, the Court in considering a motion
for a stay of the proceedings in a civil suit or to extend time
for answering the interrogatories until after disposition of
any criminal proceeding, involved, at page 12, footnote 27,
was careful to call attention to the fact that —
"Federal courts have deferred civil proceed-
ings pending the completion of parallel criminal
prosecutions when the interests of justice seem to
require such action, sometimes at the request of
26
135
the prosecution, Campbell v. Eastland, 307 F. 2d
478, cert, denied, 371 U. S. 955 [the leading case];
United States v. Bridges, 86 F. Supp. 931, 933;
United States v. 30 Individual Cartoned Jars . . .
'Ahead Hair Restorer . . ., 43 F. R. D. 181, 187
n. 8; United States v. One 1964 Cadillac Coupe De-
Ville, 41 F. R. D. 352, 353-354; United States v.
$2,437 United States Currency, 36 F. R. D. 257;
United States v. Steffes, 35 F. R. D. 24; United
States V. Maine Lobstermen's Assn., 22 F. R. D.
199; United States v. Cigarette Merchandiser's
Assn., 18 F. R. D. 497; United States v. Linen Sup-
ply Institute, 18 F. R. D. 452; sometimes at the
request of the defense, Kaeppler v. Jas. H. Mat-
thews & Co., 200 F. Supp. 229; Perry v. McGuire,
36 F. R. D. 272; cf. Nichols v. Philadelphia Tribune
Co., 22 F. R. D. 89, 92."
Thus the Supreme Court realizes the necessity for
stays of depositions or discovery in civil cases pending the
disposition of a criminal action involving the same situa-
tion or substantially the same as in the civil case, especially
where, as in the instant case, "the interests of justice" and
"public interests" require such action.
It is a recognized principle of law that official informa-
tion privilege is subject to a generally overriding require-
ment that disclosure would be contrary to the interests of
justice and the public.
Rule 509 (a). Supreme Court Rules of Evidence, effec-
tive July, 1973, 34 L. Ed. 2d 1, 54 et seq., in defining official
information in par. (2) states:
" 'Official information' is information within
the custody or control of a department or agency
of the government the disclosure of which is shown
27
136
to be contrary to the public interest and which
consists of (A) intra-govemmental opinions or rec-
ommendations submitted for consideration in the
performance of decisional or policy making func-
tions, or (B) subject to the provisions of 18 U. S.
C. § 3500, investigatory files compiled for law en-
forcement purposes and not otherwise available, or
(C) information within the custody or control of
a governmental department or agency whether in-
itiated within the department or agency or acquired
by it in its exercise of its official responsibilities
and not otherwise available to the public pursuant
to 5 U. S. C. § 552.
"(b) General Rule of Privilege. The gov-
ernment has a privilege to refuse to give evidence
and to prevent any person from giving evidence
upon a showing of reasonable likelihood of danger
that the evidence will disclose a secret of state or
official information, as defined in this rule.
"(d) Notice to Government. If the circum-
stances of the case indicate a substantial possibil-
ity that a claim of privilege would be appropriate
but has not been made because of oversight or lack
of knowledge, the judge shall give or cause notice
to be given to the officer entitled to claim the privi-
lege and shall stay further proceedings a reasonable
time to afford opportunity to assert a claim of privi-
lege.
"(e) Effect of Sustaining Claim. If a claim
of privilege is sustained in a proceeding to which
the government is a part and it appears that an-
other party is thereby deprived of material evi-
dence, the judge shall make any further orders
which the interests of justice require, including
striking the testimony of a witness, declaring a
mistrial, finding against the government upon an
28
137
issue as to which the evidence is relevant, or dis-
missing the action."
The Advisory Committee's Notes regarding Subdivision
(e) of the Rules state:
"// privilege is successfully claimed by the
government in litigation to which it is not a party,
the effect is simply to make the evidence unavail-
able, as though a witness had died or claimed the
privilege against self-incrimination, and no specifi-
cation of the consequences is necessary." 34 L. Ed.
2d 54, 55, 56. (Italics supplied).
Chapter I, Department of Justice (Rules Governing
Judicial Administration) states:
Part 16 — Production or Disclosure of Material or In-
formation.
Subpart B — Production or Disclosure in Response to
subpoena or Demand of Courts or Other Authorities, in
§ 16.22 provides:
"No employee or former employee of the De-
partment of Justice shall, in response to a demand
of a court or other authority, produce any material
contained in the files of the Department or dis-
close any information relating to material con-
tained in the files of the Department, or disclose
any information or produce any material acquired
as part of the performance of his official duties or
because of his official status without prior approval
of the appropriate Department official or the At-
torney General in accordance with § 16.24."
§§ 16.23 and 16.24 provide procedures to follow in the
29
138
event of such demand upon an employee or former em-
ployee including the F. B. I. Code of Federal Regulations
Title 28, 1973, Judicial Administration, at pages 97, 103-104.
To the same effect is § 67-16-4, Utah Code Annotated,
1953, which reads:
"Prohibited acts — Disclosing or using con-
fidential information — Using position to secure
privileges or exemptions — Accepting employment
which would impair independence of judgment. —
No pubhc officer or public employee shall:
• • • • •
"(2) Disclose confidential information ac-
quired by reason of his official position nor use such
information for his or another's private gain or
benefit."
This brings us to a consideration of the relevant State
cases.
POINT IV.
CIVIL DISCOVERY IS APPLICABLE TO
CIVIL CASES ONLY AND NOT CRIMINAL
CASES.
A State civil statute, or code of civil procedure, provid-
ing for discovery and inspection of evidence in the posses-
sion of an adverse party will not be made applicable to
criminal cases, since they are restricted to civil actions
only.
In Bailey v. State, (1957) 227 Ark. 889, 302 S. W. 2d
796, 798, cert. den. 355 U. S. 851, 2 L. Ed. 2d 59, 78 S. Ct.
77, the appellant claimed error in refusing his request to
30
139
take the deposition of the prosecution witness under the
civil discovery statute. The Court held that the act in
question applies only to civil cases and that the legislature
so intended. This act referred to "party" or "parties." A
defendant is not used. It appUed to material witnesses
where there are reasonable grounds he will die or become
mentally or physically incapable of testifying or of becom-
ing a non-resident of the State. "The materiality of the
testimony, and the reason for taking his deposition, shall
be shown by affidavit." The court held no such affidavit
or showing was made by appellant. "Had the legislature in-
tended [the civil case Act] to apply to criminal cases [as
well as civil] it could easily have so declared." Id., at p.
798. To the same effect is Edens v. State, (1962) 235 Ark.
178, 359 S. W. 2d 432, 433, cert. den. 371 U. S. 968, 9 L. Ed.
2d 538, 83 S. Ct. 551, wherein the Court held "The defen-
dant was not entitled to receive copies of the statements
that the Prosecuting Attorney had obtained from the vari-
ous witnesses for the State, as this was a part of [his] work
papers. Furthermore, we have held that the Discovery Stat-
ute . . . does not apply to criminal cases." Id., at page 433.
(Citing the Bailey case, supra. See also Edens v. State,
(1963) 235 Ark. 996, 363 S. W. 2d 923, 925).
In People v. Ratten, (1940) 39 Cal. App. 2d 267, 102
P. 2d 1097, 1099, the claim was made that the Code of Civil
Procedure permitted inspection by defendant of certain
documents in the possession of the district attorney, and
the Court in rejecting this contention decided that:
"... It is now established in California that
the sections of the Code of Civil Procedure . . . are
applicable to civil actions only . . . and that . . . the
31
140
Code of Civil Procedure may not be invoked in
criminal actions." /d., at page 1099.
To the same effect is People v. Wilkins, (1955) 135 Cal.
App. 371, 287 P. 2d 555, 559. In Yannacone v. Municipal
Court, (1963) 222 Cal. App. 2d 72, 34 Cal. Rptr. 838, 839,
the Court pointed out California's liberal discovery rule per-
mits "one charged with crime may, before trial, inspect:
statements of his own in possession of the prosecution,
whether signed, unsigned, or on recording tapes; real evi-
dence or reports of state officers' examination thereof; and
statements of persons expected to be prosecution witnesses
at trial. He may compel disclosure of the names and ad-
dresses of eyewitnesses to an alleged crime. . . . But *he does
have to show some better cause for inspection than a mere
desire for . . . all information which has been obtained by
the People in their investigation,' and such a 'blanket re-
quest' will be denied." Continuing, the Court said:
"The statutory right to deposition in criminal
cases is limited . . . The civil discovery ... is not
applicable to criminal proceedings. (Clark v. Su-
perior Court, 190 Cal. App. 2d 739, 742, 12 Cal.
Rptr. 191)." 7c?., at page 839.
To the same effect is People v. Lindsay, (1964) 227 Cal.
App. 482, 38 Cal. Rptr. 755, 773, the Court stating:
". . . But a defendant has to show some better
cause for inspection than a mere desire for the in-
formation which has been obtained by the People
in their investigation. (People v. Cooper, supra, 53
Cal. 2d p. 770, 3 Cal. Rptr. 148, 349 P. 2d 964.)
Pretrial discovery in favor of a defendant is not
required by due process. (Jones v. Superior Court,
32
141
supra, 58 Cal. 2d p. 59, 22 Cal. Rptr. 879, 372 P.
2d 919.)
In State v. Cocheo, 24 Conn. Sup. 377, 190 A. 2d 916,
918 (1963), the Court held:
". . . The state has no power to probe the files
of defense counsel and, in a fair conduct of a trial,
reciprocal power cannot be granted to the accused.
Our rules ia civil cases . . . are not apphcable in
criminal cases . . ."
In State v. Jeffries, (1925) 117 Kan. 742, 232 P. 873,
the defendant claimed that the provision of the Civil Code
(R. S. 60-2850) authorizing an inspection or permission
to take copies of books, papers, or documents that are
in the possession of an adverse party was applicable in
criminal cases by the provision of the Criminal Code which
provides:
"The provisions of law in civil cases relative
to compelling the attendance and testimony of wit-
nesses, their examination, the administration of
oaths and affirmations, and proceedings as for con-
tempt, to enforce the remedies and protect the
rights of parties, shall extend to criminal cases so
far as they are in their nature applicable thereto,
subject to the provisions contained in any statute.
R. S. 62-1413."
The State insisted the adoption of the Civil Procedure
section R. S. 62-1413 is so restricted in its terms as to ex-
clude the right to such inspection, and the Court in adopt-
ing this contention of the State, at pages 873-874, said:
". . . The court is of opinion that the adoption
section does not cover or include the provision of
33
78-678 O - 76 - 10
142
the Civil Code relating to inspection. It is a gen-
eral rule that the specification of certain procedural
steps carried the implication that aU others are ex-
cluded. The Legislature has said that the civil
provisions relating to the attendance, examination,
and testimony of witnesses are applicable in crim-
inal cases, and this raises the presumption that no
other Idnds of evidence, such as books, papers,
and documents, or steps for the inspection of or
production of the same, were within the intention
of the Legislature . . . The view of the court is that
the clause *to enforce the remedies and protect the
rights of parties' has reference to the antecedent
phrase relating to proceedings for contempt.
Transposing it, the Legislature has in effect said
that the rule of civil procedure shall be extended
and applied to contempt proceedings brought to
enforce the remedies and protect the rights of par-
ties in criminal cases. The enumerated instances
in the adoption statute it is held excludes aU un-
specified instances, and, since there is no right for
an inspection of the letters in question except by
virtue of express authorization by the Legislature,
and since none has been granted in the Criminal
Code either directly or by reference to the Civil
Code, there was no power in the court to make the
order requiring the county attorney to turn over
the letters for inspection, and the order is therefore
reversed."
In State v. Goodman, (1971) 207 Kan. 155, 483 P. 2d
1040, 1047, the Court cited the new Code of Criminal Pro-
cedure, effective 1970, which provided that if a prospective
witness was unable to attend or prevented from attending
trial or hearing to prevent failure of justice the Court upon
motion of defendant after filing of information or indict-
ment may take testimony of such witness by deposition,
34
143
but that here the witness did appear, so defendant was not
prejudiced. The trial court's order sustaining the state's
motion to quash the subpoena was affirmed.
In State v. Jones, (1968) 282 Kan. 31, 446 P. 2d 851,
863, it appeared that the defendant requested the county
attorney to produce statements taken by police from certain
witnesses, and also those of any witness not used by the
state at preliminary hearing, which motion was heard and
denied. The Court, at page 864, said:
". . . We think the district court did not err.
The statements were not official documents, nor
a part of any court record."
The Court then quoted from State v. Baders, 141 Kan.
683, 42 P. 2d 943:
" *. . . It is sufficient to say defendant was not
entitled to inspect such statements. They were in
in no sense public records and amounted to no more
than memoranda the county attorney might have
made of what the witnesses told him. See State
V. Laird, 79 Kan. 681, 100 P. 637; State v. Jeffries,
117 Kan. 742, 232 P. 873; State v. Furthmyer, 128
Kan. 317, 277 P. 1019; State v. Hooper, 140 Kan.
481, 482, 37 P. 2d 52.' "
In State v. Corkran, (1965) 3 Ohio St. 2d 125, 209 N.
E. 2d 437, the defendant asserted that the trial court erred
in overruling his motion to require the prosecuting attorney
to allow him to examine a statement in the possession of
the prosecution, relying upon a statute (Section 2317-33,
Revised Code) entitled "Evidence" which reads in part:
35
144
"Either party, or his attorney, in writing, may
demand of the adverse party an inspection and
copy, or permission to take a copy, of a book, paper,
or document in his possession or under his con-
trol, containing evidence relating to the merits of
the action or defense ..." {Id., at page 439)
which the defendant claimed was applicable to a criminal
case since it provides:
"The rules of evidence in civil cases, where
applicable, govern in all criminal causes."
'line Court held that the statutes in issue did not "apply
to criminal cases" and by "its very verbiage it would seem
apparent that Section 2317.33, Revised Code, was not de-
signed or intended to apply to criminal cases." Citing and
considering applicable cases. Id., at page 440.
In State v. Fox, (1961), 122 Vt. 251, 255, 169 A. 2d 356,
359, the defendant asserted that
". . , there is no sound reason why the Legislature
would make provision for the fullest discovery in
civil actions and withhold the remedy in criminal
prosecutions. It is suggested that the intention of
the Legislature is better served by expanding the
operation of 12 V. S. A. § 1262 to criminal causes.
The same considerations attended the deliberations
of the Advisory Committee in the adoption of the
Federal Rules of Criminal Procedure and was par-
ticularly avoided.
• • • • «
"The broad construction sought by the respon-
dent may be desirable, but this is not the con-
trolling factor. It is not the function of the courts
36
145
to expand the intention of the Legislature beyond
the terms of the act itself." (Italics supplied.)
In State ex rel, Keast v. District Court, 135 Mont. 545,
342 P. 2d 1071 (1959), an original prohibition proceeding
was instituted by a county attorney for a writ of prohibi-
tion to prevent a defendant from obtaining inspection of
writing material in a criminal case by civil discovery. The
respondent contended the district court had inherent power
to order the inspection. The Court, in making the writ
absolute, denied respondent's arguments that civil discovery
applied to ciiminal cases relying on State ex rel. Mahoney
v. Superior Court, 18 Ariz. 74, 275 P. 2d 887, 890; and Walker
v. People, 126 Colo. 135, 248 P. 2d 287, 302, wherein, in the
latter case, the court stated: "The doctrine of discovery is
therefore a complete and utter stranger to criminal pro-
cedure, unless introduced by appropriate legislation."
POINT V.
THE BURDEN OF SHOWING "GOOD CAUSE"
FOR INSPECTION OR DESIGNATING SPE-
CIFIC EVIDENCE HAS NOT BEEN MET IN
THIS CASE, AS ALREADY SHOWN, OR BY
STATE LAW.
The State cases declare that it is imperative that in
order to obtain an inspection of evidence in the possession
of the prosecution, there must be a proper showing of "good
cause" by stating the purpose for which the inspection is
sought, its relevancy, materiality, facts justifying inspection
and why it should be allowed.
37
146
It is clear that some better cause for inspection must
be shown than a mere desire for all information which has
been obtained by the prosecution in its investigation of the
crime.
People V. Terry, 57 Cal. 2d 538, 21 Cal. Rptr. 185, 370
P. 2d 985, 999, cert. den. 375 U. S. 960, 11 L. Ed. 2d 318, 84
S. Ct. 446 (1962); People v. Newville, 220 Cal. App. 2d 267,
33 Cal. Rptr. 816, 819 (1963) ; State ex rel. Keast v. District
Court, 135 Mont. 545, 342 P. 2d 1071, 1073 (1959); Rosier
V. People, 126 Colo. 82, 247 P. 2d 448, 451-453 (1952).
The production of the prosecution's evidence is not
allowed for exploratory purposes or for the purpose of pry-
ing into the prosecution's preparation for trial.
State V. Aubuchon, (1964 Mo.), 381 S. W. 2d 807, 813-
815; People v. Calandrillo, (1961) 29 Misc. 2d 491, 215
N. Y. S. 2d 361, 363.
There is no right to invoke the means of examining the
prosecution's evidence merely in the hope that something
may turn up to aid a defendant.
State v. Wallace, (1965) 97 Ariz. 296, 399 P. 2d 909;
Walker v. Superior Court, (1957) 155 Cal. App. 2d 134, 317
P. 2d 130; State v. Stump, (1963) 254 Iowa 1181, 119 N. W.
2d 210, cert. den. 375 U. S. 853, 11 L. Ed. 2d 80, 84 S. Ct.
113; State ex rel. Keast v. District Court, (1959) 135
Mont. 545, 342 P. 2d 1071; Under v. State, (1953) 156
Neb. 504, 56 N. W. 2d 734; People v. Leahey, (1960) 26
Misc. 2d 438, 207 N. Y. S. 2d 619; People v. Marshall,
(1958) 6 N. Y. 2d 823, 188 N. Y. S. 2d 213, 159 N. E. 2d
698; State v. Goldberg, (1964) 261 N. C. 181, 134 S. E. 2d
38
147
334, cert. den. 377 U. S. 978, 12 L. Ed. 2d 747, 84 S. Ct.
1884; Melchor v. State, (1965 Okla. Crim.) 404 P. 2d 63;
State V. Gilliam, (Mo.) 351 S. W. 2d 723, (1961) cert. den.
376 U. S. 914, 11 L. Ed. 2d 612, 84 S. Ct. 670; State v. Hale,
(Mo. 1963) 371 S. W. 2d 249; State v. Richette, 342 Mo.
1015, 119 S. W. 2d 330 (1938); People v. Martinez, 15 Misc.
2d 821, 183 N. Y. S. 2d 588 (1959); Anderson v. State, 207
Tenn. 486, 341 S. W. 2d 385 (1960) ; State v. Lee, 173 La.
966, 139 So. 302 (1932) ; State v. Brown, 360 Mo. 104, 227
S. W. 2d 646 (1950); People v. Marshall, 6 N. Y. 2d 823,
188 N. Y. S. 2d 213, 159 N. E. 2d 698 (1959).
In fact, a "blanket request" for prosecution's evidence
will not be granted, where it is a mere desire for all informa-
tion which has been obtained by the prosecution in its in-
vestigation of a crime. People y. Cooper, 53 Cal. 2d 755,
770, 3 Cal. Rptr. 148, 157 (1960); Yannacone v. Municipal
Court, (1963) 222 Cal. App. 2d 72, 34 Cal. Rptr. 838, 839.
The motion for production of the prosecution's evidence
must be based on facts and not on conclusions; State v.
Tune, (1953) 13 N. J. 203, 98 A. 2d 881; or mere surmise
and conjecture, People v. Gatti, (1938) 167 Misc. 545, 4 N.
Y. S. 2d 130; or where the subpoena duces tecum is pri-
marily an attempt to go on a "fishing expedition," probably
to obtain the "work product" of the prosecution. State v.
Coluin, (1957) 81 Ariz. 388, 307 P. 2d 98.
POINT VI.
PROSECUTING ATTORNEY'S NOTES, MEM-
ORANDA, FILE OR "WORK PRODUCT" ARE
NOT SUBJECT TO DISCOVERY PROCED-
URE.
39
148
An accused is not entitled to inspect the notes or mem-
oranda made by the prosecuting attorney or his representa-
tive in the preparation of the case.
People V. Bermis, (1935) 2 Cal. 2d 270, 40 P. 2d 823;
People V. Cathey, (1960) 186 Cal. App. 2d 217, 8 Cal. Rptr.
694; Hopper v. People, (1963) 152 Colo. 405, 382 P. 2d 540;
Campbell v. United States, (1961 Mun. Ct. App. Dist. Col.)
174 A. 2d 87; State v. Kelton, (1957 Mo.) 299 S. W. 2d 493;
State V. Superior Court, (1965, N. H.) 208 A. 2d 832; Brown
V. Commonwealth, (1894) 90 Va. 671, 19 S. E. 447; State
ex rel. Regan v. Superior Court, (1959) 102 N. H. 224, 226,
227, 230, 153 A. 2d 403 (notes made on behalf of Attorney
General or his staff "privileged from discovery even under
the rule in civil cases") ; State ex rel. McLetchie v. Laconia
District Court, (1964, N. H.) 205 A. 2d 534; Edens v. State,
(1962) 235 Ark. 178, 359 S. W. 2d 432, cert. den. 371 U. S.
968, 9 L. Ed. 2d 538, 83 S. Ct. 551; State v. Marzbanian,
(1963) 2 Conn. Cir. 312, 192 A. 2d 721, cert. den.
197 A. 2d 944; Peel v. State, (1963, Fla. App.) 154 So. 2d
910; People v. Murphy, (1952) 412 111. 458, 107 N. E. 2d 748,
cert. den. 344 U. S. 899, 97 L. Ed. 695, 73 S. Ct. 281, cert,
den. 350 U. S. 865, 100 L. Ed. 767, 76 S. Ct. 108; Anderson
v. State, (1959) 239 Ind. 372, 156 N. E. 2d 384; State v.
Furthmyer, (1929) 128 Kan. 317, 277 P. 1019; State v. Hill,
(1964) 193 Kan. 512, 394 P. 2d 106; State v. Tune, (1953)
13 N. J. 203, 98 A. 2d 881; State v. Bunk, (1949 N. J. County
Ct.), 63 A. 2d 842; People v. Giles, (1961) 31 Misc. 2d 354,
220 N. Y. S. 2d 905.
The "work product" of the prosecuting attorney is not
producable for inspection by the defense. State v. Colvin,
(1957) 81 Ariz. 388, 307 P. 2d 98; State v. Zimmaruck,
40
149
(1941) 128 Conn. 124, 20 A. 2d 613; State v. Roy, (1962)
23 Conn. Sup. 342, 183 A. 2d 291; State v. Salvatore, (1962)
23 Conn. Sup. 459, 184 A. 2d 551; Fuller v. United States,
(1949, Mun. Ct. App. Dist. Col.) 65 A. 2d 589; McAden v.
State, (1945) 155 Fla. 523, 21 So. 2d 33, cert. den. 326
U. S. 723, 90 L. Ed. 429, 66 S. Ct. 28; Johns v. State, (1946)
157 Fla. 18, 24 So. 2d 708; Raulerson v. State, (1958 Fla.)
102 So. 2d 281; Urga v. State, (1958, Fla. App.) 104 So. 2d
43; Bedami v. State, (1959, Fla. App.) 112 So. 2d 284, cert,
den. 361 U. S. 883, 4 L. Ed. 2d 119, 80 S. Ct. 153; Jackman
V. State, (1962, Fla. App.) 140 So. 2d 627; State v. Laird,
(1909) 79 Kan. 681, 100 P. 637; State v. Williams, (1947)
211 La. 782, 30 So. 2d 834; State v. Haddad, (1952) 221 La.
337, 59 So. 2d 411; State v. Aubuchon, (1964, Mo.) 381 S.
W. 2d 807; Dinsmore v. State, (1901) 61 Neb. 418, 85 N. W.
445; Erving and Howard v. State, (1962) 174 Neb. 90, 116
N. W. 2d 7, cert. den. Howard v. State, 375 U. S. 876, 11 L.
Ed. 2d 121, 84 S. Ct. 151; People v. Marshall, (1958) 5 App.
Div. 2d 352, 172 N. Y. S. 2d 237, affd. 6 N. Y. 2d 823, 188
N. Y. S. 2d 213, 159 N. E. 2d 698; State v Miller, (1961
App.) 88 Ohio L. Abs. 533, 176 N. E. 2d 296, app. dismd. 172
Ohio St. 554, 18 Ohio Ops. 2d 93, 179 N. E. 2d 53.
POINT VII.
IT IS NOW CLEAR THAT NEITHER THE
FEDERAL NOR THE STATE COURTS WILL
COMPEL BY CIVIL DISCOVERY METHOD
THE DISCLOSURE OF MATERIAL FORM-
ING THE BASIS OF CRIMINAL PROSECU-
TION.
41
150
In Redmond v. City Court of Salt Lake City, 17 Utah
2d 95, 404 P. 2d 964 (1965), a petition for mandamus was
filed to require a county attorney to produce checks so that
defendants, in a criminal prosecution, by handwriting ex-
perts might depend on preliminary examination by showing
that they had not written and endorsed the checks, the sub-
ject of the particular charge. The court below refused the
discovery. Chief Justice Henriod, in affirming the action
of the lower court, at 17 Utah 2d at 95-96, 404 P. 2d at 964,
said:
". . . We also feel that the district court was
right in deciding that under our statutes and the
cases, there was not an abuse of discretion, nor a
denial of due process by the city court as reflected
in the record before us, and that the district court
did not err either, in refusing to order the county
attorney to do so."
Section 105-21-9(1) U. C. A. 1943, (now § 77-29-9,
U. C. A. 1953), authorizing a bill of particulars "was not
intended as a device to compel the prosecution to give an
accused a preview of the evidence on which the state relies
to sustain the charge." State v. Stack, 118 Utah 128, 134,
221 P. 2d 852 (1950).
In State v. Martinez, 21 Utah 2d 187, 442 P. 2d 943
(1968), the defendant sought disclosure of the prosecution's
evidence which the trial court refused to order. Mr. Justice
Henriod, in declaring this was not errer, at page 188, in
disposing of this claim of disclosure, said:
". . . that the court [had not] erred in not re-
quiring disclosure of the prosecution's evidence,
which was an all-inclusive and unreasonable dis-
42
151
closure demand fraught with dangerous adversary
procedural implication if the request had been
granted."
Citing the often referred to case of United States v. Garsson,
291 F. 646 (D. C. S. C, N. Y. 1923) in which Judge Learned
Hand profoundly stated at page 649:
". . . Under our criminal procedure the accused
has every advantage. While the prosecution is held
rigidly to the charge, he need not disclose the bar-
est outline of his defense. He is immune from ques-
tion or comment on his silence; he cannot be con-
victed when there is the least fair doubt in the
minds of any one of the twelve. Why in addition
he should in advance have the whole evidence
against him to pick over at his leisure, and make
his defense, fairly or fouUy, I have never been able
to see. No doubt grand juries err and indictments
are calamities to honest men, but we must work
with human beings and we can correct such errors
only at too large a price. Our dangers do not lie in
too Uttle tenderness to the accused. Our proced-
ure has been always haunted by the ghost of the
innocent man convicted. It is an unreal dream.
What we need to fear is the archaic formalism and
the watery sentiment that obstructs, delays, and
defeats the prosecution of crime."
CONCLUSION
In the light of the statutory and decisional law here-
inbefore considered it is imperative that the prayer of the
State of Utah in this petition be granted by this Court issu-
ing a writ of mandamus or prohibition in the interests of
justice, public policy and valid administration of justice
as determined by law.
43
152
It is to be observed that the State is merely requesting
that the civil case, now pending in the court below, be held
in abeyance until the related State criminal proceeding, now
in the process of prosecution, is finally terminated. The State
is not asserting here its right and power of privilege which
it can do, by refusing to divulge the results of its investiga-
tion of any criminal violations resulting therefrom.
The use of the civil discovery subpoena duces tecum in
question shows on its face that it is nothing more than a
"blanket request" or a "fishing expedition" or a "backdoor"
or "cover-up" or "as a dodge" to avoid the restrictions of
criminal discovery in an "attempt to obtain a wholesale dis-
closure of material favorable on the question of guilt."
There is no showing of "good faith" as required by law.
The subpoena duces tecum is merely an attempt to subvert
civil discovery into a device for obtaining pre-trial discovery
against the State in its related criminal proceeding.
The action taken by the defendant Judge in denying the
motion for the delay of the civil proceedings constituted an
abuse of his judicial power as shown by the Transcript of
Record, at page 11, Judge Ritter stating in open court as
follows:
". . . The F. B. I. agents were running the
D. A.'s in those days. The F. B. I. agent came in
and said what they would do and wouldn't do, and
he came in and took that witness stand and said
he was going to disclose nothing. So I promptly
made an order that he disclose his entire investi-
gation. And I have been doing that ever since."
Continuing, at page 12, he stated:
44
153
"... I require that sort of thing in civil cases.
I require the F. B. I. to produce and I require the
Attorney General of the United States to produce.
I require the D. A. to produce. It is everyday,
common practice in this courtroom now that every
criminal defendant is given the whole file right at
the start. I don't have to make a ruling on each
case any more. That is the practice we have es-
tabhshed. That wiU be the ruling. If you have
some problem, why, I am here and you can come
in and we will see what we can do about it."
Intervention here would expose every State criminal
prosecution to insupportable disruption. The Federal Courts
have recognized the wisdom of staying cases pending de-
termination of related actions in State Courts. Federal
Courts follow a procedure aimed at the avoidance of unnec-
essary interference by such courts with proper and validly
administered state concerns, a course so essential to the
balanced working of our Federal system, so as to minimize
the possibility of such interference; and a scrupulous regard
for the rightful independence of state governments, should
at all times actuate Federal Courts.
Respectfully submitted,
VERNON B. ROMNEY
Attorney General
ROBERT B. HANSEN
Deputy Attorney General
JOSEPH P. McCarthy
Assistant Attorney General
RANDOLPH S. COLLINS
Assistant Attorney General
May, 1974 Attorneys for Plaintiff
45
154
I hesitate to use the word "Watergate" because it's a term now used
to describe conduct often no more serious than a public official getting
picked up for reckless driving. But where Nixon's Watergate was
a conspiracy within the executive branch of Government, Eitter's
judicial Watergate is simply a conspiracy of silence among Utah
lawyers, journalists, and public officials, who do little or nothing, while
a man who never should have been a judge in the first place continues
to rule Utah's Federal judicial system.
No one is above the law. Lawyers, even more than citizens in general,
ought to act legally. Judges, even more than attorneys, should obey
the law and ethical standards.
Senator Burdick. Thank you very much.
Essentially all of your statements seem to be directed against the
conduct of Judge Eitter, which would apply to him as a sitting judge,
as well as a chief iudge.
Mr. Hansex. That's true, Senator Burdick. We can do, in the pas-
sage of this bill. — only correct a ver\^ minor part of the problem and we
really should be before the House Judiciary Committee on Impeach-
ment Hearings.
Senator Burdick. Because I say that's out of our jurisdiction.
Mr. Hansen. It may be out of your jurisdiction, Senator, but at least
what you can do, we respectfully submit, you should do.
Senator Burdick. We'll do what we can properly do, of course.
That's the purpose of this committee.
Senator Garn. Mr. Chairman, before the next witness comes up,
could I make just one brief response to this point of Mr, Westphal ? I
realize I'm not still there as a witness, but very briefly ?
Senator Burdick. Certainly. Just a minute. I have some questions of
this witness.
Senator Garn. I recognize the legal technicalities and what Mr.
Westphal is trying to point out and to narrow this. I have only been a
Senator for 17 months, but I have sat through dozens and dozens and
hundreds of committee hearings.
And I have seen other committees take w^ide-ranging testimony. We
are not the judicial branch; we are the legislative branch. And in
considerinir legislation in all of the committees I serve on we've been
willing to listen to any information that would help us make a decision
on that particular bill.
Maybe because all of the members of this committee are attorneys
there is more of a tendency to go to legal technicalities and to look at
only evidence directly pertaining. I can understand that feeling.
But T would like to point out that this is the legislative bodv. And I
would like to point out that were I a Member of the House of Eepre-
sentatives, I would be attempting to have Judge Eitter impeached on
the evidence that is being presented. But I do feel, as a Senator, and as
fellow Senators considering this, that it is peilinent. You can play the
attorney game and narrowly define it and exclude all of this and say it
isn't important. But this isn't a court. It's a subcommittee of the U.S.
Senate.
And I would hope the committee would take into consideration the
abuses being heaped and, as the Deputy Atforney General just said,
maybe on a scale of 10 this bill only corrects 10 percent, but that would
be a help to the people of Utah and to the judicial system.
155
And I would hope you would not summarily define it and you would
consider his decisions, his temperament, his abuse of the judicial sys-
tem as a sittint; judge, and do something for the people of Utah. Thank
you.
Senator Eurdick. Just a minute, Senator. We've excluded no testi-
mony. We've excluded no witnesses. AVe're not confining a single thing.
We made no determination. We're simply pointing out that there are
certain areas we have no power over. That's all we were doing.
Senator Garx. Senator, I completely agree and you have been will-
ing to listen to any testimony, but in ]\Ir.
Senator Burdick. And we don't exc) ade anybody.
Senator Garx [continuing]. Westphal's line of questioning, I sit
here and think that when the decision is made, that although it was
listened to
Senator Burdick. The Committee will determine from all that is
before us.
Senator Garx [continuing]. It would be excluded. Thank you.
Senator Burdick. Now, you say, Mr. Hansen, that you have taken
several opinion polls and I think iv several cities. And these show
that people aren't satisfied with — what's the word you used? — "bi-
ased," occasionally biased. Do you really think this Committee should
take into consideration opinion polls?
]\Ir. Haxsex. Well, to the extent that it is pertinent as to whether
or not Utah needs any special justification over and above the con-
sideration given to all other States, that they have a chief judge under
the age of"^70, then I think that all factors that have a bearing on
whether or not he performs well as chief judge ought to be considered.
And I would think that the members of the Utah State Bar, as a
collective judgment, rather than just a few perhaps disgruntled ones
who have lost a case in his court, provide very significant evidence as
to what their judgment is as to how well he does perform, because
after all, the courts are there to serve the people. And those who are
in the best position to judge the court's performance, I think, are the
attorneys who practice before the court, because that poll consists not
only of those attorneys who dislike Judge Kitter, but also those who
do like him very much.
Senator Burdick. You and I are both lawyers.
Mr. Haxsex. Yes, sir.
Senator Burdick. Do you use opinion polls in your prosecution of
cases ?
Mr. Haxsex. No; not in prospcutimi cases, but there f>re cases, of
course, where public sentiment does have a bearing and I think in
the field of legislation is one area where I think that does have a proper
role.
Senator Burdick. Well, this Committee wants evidence.
Mr. Haxsex. We're here to try to provide what information we
have, Senator.
Senator Burdick. Just one question. You say that 39 applications
for writs and 8 were granted. In other words, the judge prevailed 80
percent of the time on that score?
Mr. Haxsex. Well, three-fourths of the time he did. Your Honor,
yes.
Senator Burdick. Well, 8 is to 39 whatever it is — three-fourths.
156
Mr. Hansen. Well, 39 was the number filed. 8 percent were those
granted.
Senator Burdick. Is that bad ?
Mr. Hansen. Well, that's a pretty good batting average, if you
want to look at it in the abstract. But that's why I compared it to the
other judge in respect to the percentage and I didn't have that on the
chart. But we have produced the figures that writs are granted
against him on an average of about three times as often as they are
against any other judge. So I think that what you have to do is not
consider that figure in the abstract, because that's an extraordinary
remedy before a trial for an appellate court to say that the judge has
so conducted himself that he ought not to preside as the judge over
that trial. That's a pretty extreme remedy and it is very rarely
granted.
But I might say that five of those special writs have been filed by the
United States Government since Judge Ritter became over the age of
70 ; three have been filed by the State of Utah ; I think two by Salt
Lake City. The large percentage of the others are major corporations
of this country and other leading citizens.
So I think if you looked into that, you'd see that these weren't writs
that were filed by some tax protester or fringe litigant. They were
filed by very substantial counsel and for very good cause.
Senator Burdick. I think Mr. Westphal has just one question.
Mr. Westphal. I just have one question, Mr. Hansen. You men-
tioned that he has been reversed some 54 percent of the time or some-
thing of that kind. If this bill passes and he didn't have the word
"Chief" to describe his position as the judge, do you think that would
have any bearing on his reversal rate ?
Mr. Hansen. No. I think a judge that is as bright as Judge Ritter
is — and even his critics concede that he is a very brilliant man — and
as a result, you have to attribute those 54 percent reversals not to the
fact that he doesn't know what the law is, but that he refuses to follow
the law.
And, therefore, I think it's even worse for a judge to have the stature
and the power of a chief judge who isn't even an adequate judge.
Mr. Westphal. It seems to me that's a nuestion for the House of
Representatives and not for the Senate initially.
Mr. Hansen. I hope we'll have a chance to present that some day.
It has been difficult enough getting the bill to the point that this bill
is now. And as I mentioned at the outset of my statement, this is a mild
slap at n iudge that slioukl get a Ivuockout punch.
Mr. Westphal. I have no further questions.
Senator Burdick. Thank you very much.
Our next witness is Mr. William J. Lockhart, Salt Lake City, Utah.
Welcome to the Committee.
Mr. Lockhart. Good morning. Senator. I guess it's still morning.
I appreciate the opportunity to appear here to oppose S. 1130. I have
submitted a statement and t propose to omit reading the first portion
of the statement.
Senator Burdick. Your entire statement will be made part of the
record, without objection,
Mr. Lockhart. Thank you.
[The above referred to statement follows :]
157
Salt Lake City, Utah, May IS, 1976.
Re May IS, 1976, hearing on S. 1130.
Hon. QUENTIN N. BXJRDICK,
Chairman, Subcommitee on Improvements in Judicial Machinery, Senate Com^
mittee on the Judiciary, U.S. Senate, Senate Office Building, Washington,
D.C.
Dear Senator Burdick : This statement is submitted in response to your invi-
tation by your letter of May 6, inviting my comment and testimony on S. 1130.
Because this bill is designed and intended to impose a special sanction upon
Chief Judge Willis W. Bitter, United States District Court for the District of
Utah, it is obviously of some concern to you to know my associations with the
State and with Judge Ritter. Please allow me to make clear that this description
of my background is simply for the committee's information. I speak only on my
own behalf and not for any of the institutions or associations with which I am
or have been affiliated.
I have been a resident of the State of Utah since July, 1964, when I moved my
family to Salt Lake City to accept an appointment at the College of Law, Univer-
sity of Utah, where I am now a Professor of Law, teaching Administrative Law,
Federal Courts and Constitutional Law. Beginning in approximately 1967 I first
v»-as admitted to practice before the United States District Court for the District
of Utah and appeared before Judge Ritter as appointed counsel in a habeas corpus
matter. Since that time, I have appeared before him on several occasions in civil
Uberties or Indian matters. As the former director of the legal panel and president
of the Utah Affiliate of the American Civil Liberties Union, I had occasion to be
familiar with Judge Ritter's handling of litigation of interest to the ACLU.
On November 22, 1974, following the accidental death of the then U.S. Attorney,
Mr. C. Nelson Day, Judge Ritter exercised his statutory power to appoint me as
interim United States Attorney pending presidential appointment and confirma-
tion of a successor. I remained in that office until May 5, 1975, and was succeeded
by Mr. Ramon Child.
On two occasions I have represented Chief Judge Ritter in connection with
mandamus and other actions before the Court of Appeals for the Tenth Circuit
arising out of his duties as a district judge, once as private counsel (without fee),
and once in the course of my official duties as United States Attorney. In none of
the cases in which I have appeared before Judge Ritter did I ever personally
receive a fee for my legal services, though on one occasion I did recover a stat-
utory attorney fee in a fair housing case which, by prearrangement was contrib-
uted to the minority scholarship fund of the College of Law. I have no cases, and
have not had since leaving the United States Attorneys office, in Judge Ritter's
Court.
The background of my appointment by Judge Ritter as United States Attorney
may be of some interest to the Committee. A year prior to my appointment I had
been conducting independent research in Washington, D.C, studying the problems
of exercise and control of prosecutorial discretion. Since returning from Wash-
ington, I had pursued further research and had been preparing a report of my
work, which focussed heavily upon the relationship between the federal enforce-
ment agencies and the role of the United States Attorneys in prosecuting cases
on behalf of those agencies. When it became apparent that the vacancy in the
United States Attorneys Office would be filled by interim appointment, certain
friends aware of my research interests advised Judge Ritter that my experience
and interest might suit me for the task. At his invitation, then, I gratefully ac-
cepted the opportunity for first-hand experience in the exercise of prosecutorial
discretion, and have recently prepared an article on the problems of prosecutorial
discretion, as they affected the President's Clemency Program which I admin-
istered for the District of Utah.
With that background, let me state my view of S. 1130.
I view this bill as a heavy-handed and poorly-disguised effort to use the United
States Senate as a political forum for certain elements of the Utah political spec-
trum who wish to strike back at a federal Judge who has generally been recog-
nized as a stout protector of civil rights and civil liberties in Utah. It is not
irrelevant that the chief proponent of this political slap at a sitting federal judge
has been posturing for political office ever since he began this harassment pro-
gram more than two years ago, and is now a candidate for State Attorney
General.
The politically-motivated nature of this proposal is clearly revealed by the
irrelevancy of the arguments offered in its support. Although the proposal is
78-678 — 76 11
158
designed solely to strip Judge Ritter of his title of Chief Judge by repealing a
narrow gx-andfather clause, virtually none of the arguments bandied about in
Utah have anything to do with the functions of Chief Judge.
The main function likely to provoke dispute about the powers of a Chief
Judge — the assignment of cases — was long ago dealt with in the District of
Utah by an assignment rule which leaves virtually no assignment powers to the
Chief Judge. And that assignment rule also dispenses with most of the problems
of judicial administration of the caseload, because the assignment rule leaves
management of the cases in the lap of the judge to whom the cases are originally
assigned. Thus, the main remaining authority of the office of Chief Judge — the
ministerial administration of the Court — is a matter to which little, if any, public
argument has been addressed.
If there are any credible complaints about the operation of the clerk's office,
they have not been advanced in Utah. The only complaint of that kind has been
the intemperate and grandiose series of complaints and charges by Jlr. Julius
Petrofsky, which on inquiry were rejected by the ACLU. (After my tenure with
ACLU.)
No complaints have been made about the only other major areas of adminis-
tration : the Bankruptcy Court and Probation Office. Beth offices are generally
acknowledged by the Bar to be extremely effective.
Beyond these observations, it is difficult to respond factually because none of
the purported factual basis for complaint relating to performance of the func-
tions of Chief Judge has been discussed by the proponents.
What it comes down to, then, is that the proponents of this Bill seek to use
the forum of the United Sfeates Senate as a launching platform for political
cha.stisement of a federal judge. By urging enactment of this Bill they hope to
punish him for attitudes or for constitutional and legal positions that have no
significant relevance to the role of Chief Judge of which they hope to strip him.
Even assuming the full good faith of the complaints addressed to Judge Ritter,
they concern his role as an independent federal judge. His status as Chief Judge
is simply irrelevant.
The manner in which this proposal has been promoted, first before the assem-
bled State Bar Association in Utah, and now before this Commitee, reveals its
real purpose. The proponents of the State Bar resolution concerning this Bill
have acknowledged that their primary motive was to redress what they claim
to be the Judge's iri-ascibility or lack of adequate judicial decorum. But there
has never been any effort by the proponents to seek quiet and amicable resolu-
tion of any differences they may have with the Judge arising out of particular
cases. So far as I know, none of the proponents have ever sought the assistance
of the Bar leadership by proffering detailed examples of their complaints and
seeking the assistance of the Bar leadership to resolve any complaints. Rather,
the proponents have sought at every turn to place these disputes in the public
forum and gain maximum publicity for their efforts at confrontation — and this
committee is merely the latest forum.
There is no question that Judge Ritter has been a controversial judge, and
I think he would agree to be characterized as sometimes crotchety. It is clear
that he does not tolerate fools gladly in his courtroom, and often assists them
in recognizing their identity. He tends to make prosecutors turn square corners
and narrowly limits their latitude because of this personal and substantive
perceptions of the dangers to liberty of the largely uncontrolled powers vested
in the prosecutor. During my tenure in the office of United States Attorney, I
certainly felt in some instances that the Judge too narrowly limited the scope of
appropriate examination, and sometimes set schedules that put our preparation
to the test.
But the proper way to deal with these conflicts is to recognize that our legal
system is designed to accommodate and resolve the inevitable conflicts between
the administrative and judicial branches. Thus, the present United States At-
torney has quite properly set out through the established legal process to contest
the Judge's restrictive view of the appropriate role of the Grand Jury. There is
reason for the prosecutor to be concerned about his need for the investigative
and charging powers of the Grand Jury. But there is equally good reason for a
responsible judge to be concerned about the prosecutor's easy control of the
Grand Jury or the possible misuse of grants of immunity.
These inevitable conflicts arise from a problem on which there is a reasonable
basis for difference of opinion — including possible legal error by the judge as
well as by the prosecutor. So long as efforts to resolve these inevitable conflicts
remain within the legal process, strongly-held viewpoints will be expected, but
the issues will be resolved on principle and without damage to our institutions.
159
But when politicians begin to suggest the use of political instruments to punish
or chastise federal judges, constitutionalists are obligated to speak out for the
independence of the federal judiciary.
It is not necessary to resolve the uncertain question whether this Bill is a Bill
of Attainder. It is sufficient to recognize that the underlying policy of that Con-
stitutional prohibition is especially offended by selective legislative sanctions
aimed at a single, identified federal judge. In this instance, the distasteful aura
of legislative condemnation of an individual without trial would be seriously
magnified by the dangerous legislative precedent set. If this Bill is approved, it
becomes fair game for Senators who conceive themselves to have serious philo-
sophic or personal differences with a Federal Judge to develop imaginative legis-
lative sanctions to strip their target of various prerequisites of office. The only
difference is that in this instance no imagination was needed because Judge Ritler
is the last of a legislatively-defined class, permitting easy targeting of the sanc-
tion by a simple repealer.
Nor does it seem to bother the proponents of this Bill that this legislative
"trial" of Judge Bitter should take place without any notice of the "charges,"
without opportunity to know and respond to the supporting "evidence," and witli
their maximum efforts to gain public spotlight through the hearings. Thus, the
sponsor of this Bill broadly reported these hearings to the people of Utah in
terms which made clear that the Bill is aimed personally at Judge Bitter.
The great irony of this publicity-seeking effort, ho^^■ever, is tliat in the very
next column of the same Newsletter, the sponsor glowingly depicted the protec-
tions for the Federal judiciary in the Judicial Tenure Act (S. 1110) of which he
is a co-sponsor. I would like briefly to quote the principle which Senator Gam
lauds so highly, but apparently prefers to honor only in the breach :
"Throughout this process, there are safeguards to protect against any abuse.
Any judge, who is subject to inquiries, would be accorded all rights of due proc-
ess including the right of appeal to the Supreme Court. All document filed with
and testimony taken by either the Council on Judicial Tenure or the Judicial
Conference would be confidential."
It seems to me that the Senator who sponsors S. 1130 ought to have a long
heart-to-heart talk with the Senator who is the co-sponsor of S. 1110.
Finally, while perhaps not raising a matter of such overarching principle, it
seems to me that this Committee should be concerned with the wisdom of any
precedent permitting the withdrawal from prior commitment to a Grandfather
Clause on the basis of a single senator's personal feud.
That this would be the impact of this Bill is clear. I have previously sum-
marized the legislative history of the Grandfather Clause in a letter to Chair-
man Burdick on January 27. Please permit me to quote a brief synopsis of that
legislative history from my earlier letter :
"The Grandfather Clause section was originally enacted to permit chief judges,
in districts with two judges, to retain their office as chief judge after reaching
the age of 70. Pursuant to attrition and the application of the general provisions
of 28 U.S.C § 136, it is my understanding that Chief Judge Bitter is the only
remaining judge to benefit by the Grandfather Clause.
"The purpose of the Grandfather clause was explained by Senator Eastland at
page 15250 of the Congresisonal Becord of July 28, 1958. (Marked and identified
with a paper clip on attached material.) It reorganized that the burden of ad-
ministrative duties of a Chief Judge in a two-judge district is not so heavy as
to require relinquishment of office by those sitting Chief Judges."
None of the elements of the commitment made by that earlier Grandfather
Clause have changed, and many of the participants in that original decision are
still in the Senate. The proponents of this Bill do not even pretend to urge any
claim of principle or general national policy requiring modification of the pro-
vision in the National interest. Rather, they urge that the Senate's earlier com-
mitment be withdrawn on the basis of a single parochial dispute. That sort of
chameleon image could not promote confidence in future legislative compromises.
I will be happy to respond to any questions.
Very truly yours,
William J. Lock hart.
Judicial Tenxtee Act
The United States Judicial system is the finest in the world. Much of the
credit for the success of the system belongs to those judges and justices who
160
meet and maintain tlie highest quality of judicial excellence. However, no judge
can be assumed perfect. Abuse of power, corruption and disability occur in all
branches of government. When a judge fails to live up to the degree of excel-
lence required of him, or if he becomes physically or mentally unable to sit
on the bench, impeachment Is the only recourse. Besides being a long, involved
procedure, extremely difficult to complete, impeachment is often too harsh a
remedy, causing humiliation and loss of benefits. Therefore, I have joined in
sponsoring the Judicial Tenure Act, a bill which provides a wise and acceptable
plan under which members of the Federal judiciary may be removed from office
without the agony of impeachment.
The bill would establish a Council on Judicial Tenure which would be com-
posed of judges elected by their fellow judges from each circuit. A panel of
the Council would receive and investigate any written claims of misconduct or
disability of a judge. They could either dismiss the complaint or report it to
the Judicial Conference of the United States along with their recommendation.
The Judicial Conference, or a nine-member committee of the Conference, would
then sit as a Federal court to decide the case by dismissing the complaint,
censuring the judge, or removing him from office. A judge could also be invol-
untarily retired if a mental or physical disability were seriously interfering
with his performance. Throughout this process, there are safeguards to pro-
tect against any abuse. Any judge, who is subject to inquiries, would be accorded
all rights of due process, including the right of appeal to the Supreme Court.
All documents filed with and testimony taken by either the Council on Judicial
Tenure or the Judicial Conference would be confidential.
A judge would never be referred to the Judicial Conference for being contro-
versial. It is the intemperate, incompetent, physically or mentally incapable
judge, whose judgeship is an abuse of the Judicial system, that would be alfected
by this legislation.
South Korean Tkip
During the Christmas congressional recess I visited South Korea as the guest
of the Korea-United States Economic Council. The purpose of the trip was to
study South Korea — its economy, defense posture and attitude toward the
United States.
South Korea has been likened to Viet Nam, a comparison I found to be totally
erroneous. Economic strength, a feeling of independence and a desire to retain
freedom pervades the country. Unlike South Vietnam, South Koreans are anti-
Communist. Even opponents of the present administration oppose Communism.
South Koreans would stay in their Country and fight Communist aggressors.
Currently there is no imminent threat of attack from the North. South
Korean defenses are strong, the troops are well trained and the country's
weapon production capabilities are increasing. An equally strong deterrent to
war is the presence of American troops in South Korea. Our attitude of defense
against Communism and our solidarity in maintaining support for South Korea
provides the security the country needs to continue to progress. It is in our self-
interest as well as theirs that they remain free.
Chief Judge Hearings
Over a year ago, I introduced Senate Bill 1130 to remove the chief judgeship
"grandfather clause" and require all Federal district court judges to surrender
their chief judgeship at age 70. At the end of March, a commitment was made by a
Judiciary Subcommittee chairman that hearings on the bill will be held in
the near future. While others have, in the past, introduced similar legislation,
none of the bills has reached the hearing stage.
The only court in the United States that is affected by the grandfather clause
is the U.S. District Court for the District of Utah. This legislation would remove
Judge Willis Ritter's chief judgeship. He would, unfortunately, be able to con-
tinue to serve on the bench but he would not be able to assign cases or other-
wise function as chief judge.
With hearings scheduled this spring, the United States Judicial Conference,
people from the Justice Department, representatives of tbe Utah State Bar and
others will finally be given their day in court to testify on why this bill should
be passed and the chief judgeship taken from Judge Ritter.
161
Utah Day
Millions of people are expected to visit Washington, D.C. this summer. To
avoid the crowds, you may wish to schedule your Bicentennial vacation around
Utah Day, November 12. Utah Day is a day which the District of Columbia has
set aside to honor Utahns and their contributions to the United States. A special
ceremony with D.C. Mayor Walter AVashington, Governor Calvin Rampton and
members of the Utah delegation is planned. Also on the agenda is a congres-
sional luncheon, a program by D.C. school children and a musical salute to
Utah in the Kennedy Center. The Utah Bicentennial Commission or the Gover-
nor's office can supply further details concerning Utah Day.
STATEMENT OF WILLIAM J. LOCKHAET, SALT LAKE CITY
Mr. LocKHART. I would like, then, simply to begin by stating that
my main objection to this bill is that it appears to me to be a heavy-
handed, irrelevant, poorly disguised political effort to use the U.S.
Senate or this committee as a forum for some elements of the political
spectrum in Utah who wish to strike back at a judge who has generally
been recog-nized as a protector of civil liberties and civil rights in
Utah.
I think it is not irrelevant that the chief proponent in Utah of this
political slap — which I think was essentially revealed by the language
that he, in fact, used — is Mr. Hansen, who has been posturing for
political office in Utah ever since he began this program more than
2 years ago. And he is now a candidate for State attorney general.
I think the politically motivated nature of this proposal is clearly
revealed by the irrelevancy of the arguments offered in its support.
Although the proposal is designed to strip Judge Ritter of his title
of chief judge by repealing a narrow grandfather clause, virtually
none of the arguments bandied about in Utah or here at this table have
anything to do with his functions as chief judge.
The main function likely to provoke dispute about the powers of
the chief judge, the assignment of cases, was long ago dealt with, as
committee counsel has emphasized, by an assignment rule which left
virtually no assignment power to the chief judge. That assignment
rule also dispenses with most of the problems of judicial administra-
tion, administration of the caseload, because it leaves management of
the cases, in the hands of the judge to whom the case is assigned for
trial.
Therefore, the remaining authority of the chief judge or the office
of chief judge is mainly ministerial. The function of handling, pri-
marily, the bankruptcy court, the clerk's office, and the probation
department.
I am not aware of any discussion in this committee hearing ad-
dressed to any of those issues. Beyond those observations and with
respect to the main thrust of the arguments offered by Mr. Hansen, I
think it is difficult to respond factually for precisely the reasons. Sena-
tor, that you have pointed out — that this is a matter which, if it is to
be the subject of discussion and dispute, required trial.
We have questions of fact, detailed questions and charges which
have been propounded and there is no opportunity for answer in this
kind of a forum. By urging enactment of this bill, it seems to me that
the essence of the proponents' position is that they simply hope to
162
punish the jiido^e for attitudes or for constitutional and legal posi-
tions that have no significant relevance to the role of chief judge.
Even assuming the good faith of the complaints addressed to the
judge with respect to these factual issues, which have been broadly
asserted but not supported in detail, they simply concern his role as
an independent Federal judge, a member of the Federal judiciary, and
his status as chief judge is simply irrelevant.
The manner in which this proposal has been promoted, first before
the assembled State Bar of Utah, and now before this committee,
reveals its real purpose. The proponents have aclniowledged that the
primary motive was to redress what they claim to be the judge's
irascibility, lack of adequate judicial decorum and similar kinds of
■charges.
There has never been, to my knowledge, any effort by the proponents
to seek a quiet and amicable resolution of any differences they may
have with the judge arising out of particular cases. So far as I know,
none of the proponents have ever sought the assistance of the bar
leadei'ship, by proffering detailed examples of their complaints, and
seeking the assistance of the Bar leadership to resolve any complaints.
It has rather been their approach to seek maximum publicity for
ttheir efforts at confrontation and their use of the committee is merely
their latest forum. There's no question that Chief Judge Ritter has
been a controversial judge. I think he would agree to be characterized
as sometimes "crotchety." It is clear that he does not tolerate fools
gladly in his courtroom and he sometimes assists them in recognizing
their true identity.
He tends to make prosecutors turn square corners and he narrowly
limits their latitude because of his personal and substantive percep-
tion of the danger to liberty of the largely uncontrolled powers vested
in the prosecutor.
During my tenure in the Office of the U.S. Attorney, I certainly
felt, in some instances, that the judge too narrowly limited the scope
of ap]>ropriate examination and sometimes set schedules that put our
preparation to the test.
But the proper way to deal with these conflicts is to recognize that
our legal system is designed to accommodate and resolve the inevitable
conflicts between the administrative and judicial branches.
Thus, the present U.S. Attorney, I think, quite properly has set
out through the established legal process to contest the judge's restric-
tive view of the appropriate role of tlie grand jury. There is reason
for the prosecutor to be concerned about the need for the investigative
and cliarging powers of the grand jury.
But there is equally good reason for a responsible judge to be con-
cerned about the prosecutor's easy control of the grand jury or the
possible misuse of grants of immunity. These inevitable conflicts arise
from a problem on which there is a reasonable basis for difference of
opinion, including possible legal error by the judge, as well as by the
prosecutor.
So long as efforts to resolve these inevitable conflicts remain within
the legal process, strongly held viewpoints will be expressed, but the
issues will be resolved on principle and without damage to our
institutions.
163
But when politicians beo;in to suggest the use of political instru-
ments to punish or chastise Federal judges, constitutionalists are
obligated to speak out for the independence of the federal judiciary.
It is not necessary to resolve the uncertain question of whether this
proposal is a bill of attainder. It is sufficient to recognize that the
underlying policy of that constitutional prohibition is especially
offended by selective legislative sanctions aimed at a single, identified
Federal judge.
In this instance, the distasteful aura of legislative condemnation
of an individual without trial would be seriously magnified by the
dangerous legislative precedent set. If this bill is approved, it becomes
fair game for senators who conceive themselves to have serious philo-
sophic or personal differences with a Federal judge to develop
imaginative legislative sanctions to strip their target of various
perquisites of office.
The only difference is that in this instance no imagination was
needed because Judge Ritter is the last of a legislatively defined class
permitting easy targeting by a simple repealer. Nor does it seem to
botlier the proponents of this bill tJiat legislative trial or Judge Ritter
should take place in this forum without auA'^ notice of charges, with-
out opportunity to know and respond to the supporting evidence and
with their maximum efforts to gain public spotlight through the
hearings.
Thus, the sponsor of this bill broadly reported these hearings to
the people of Utah in terms which made clear that the bill is aimed
personally at Judge Ritter.
The great irony of this publicity-seeking effort, however, is that in
the very next column of the same newsletter, the sponsor glowingly
depicted the protections for the Federal judiciary in the Judicial
Tenure Act S. 1110. of which he is a co-sponsor. I would like briefly
to quote the principle which the Senator lauds so highly, but ap-
parently prefers to honor only in the breach :
Thronsrhout this process, there are safegnards to protect against any abuse.
Any judge, who is subject to inquiries, would be accorded all rights of due
process, including the right of appeal to the Supreme Court. All documents
filed with and testimony taken by either the Council on Judicial Tenure or the
Judicial Conference would be confidential.
It seems to me that the Senator who sponsors S.^ 1130 ought to have
a long heart-to-heart talk with the Senator who is the co-sponsor of
S.lllO.
Finally, while perhaps not raising a matter of such over-arching
pi'inciple. it seems to me the rommittee should be concerned with the
wisdom of any precedent permitting the withdrawal from prior com-
mitment to a grandfather clause on the basis of a single senator's per-
sonal feud. Thnt this would be the impact of the bill, it is clear. I
think the leoislative histoiw has already been aptly summarized and
it does show the adoption of this grandfather clause specifically for
the nolitical purposes of the comnromises that were entered into at
the time the bill was adopted. And it also recognized that the burden
of administrative duties were not so heavy as to require the relmquish-
ment of the chief judsre role in a two- judge court.
I don't believe that anv of the commitments or understanclmgs
have chanired. I think it would not be a credit to the political process
1G4
to evoke this kind of chameleon image with respect to future legisla-
tive compromises.
I do have some additional comments I would like to make beyond
the formal statement, but perhaps those would come out in response
to questions. If not, I would like to reserve an opportunity, if 1 may,
to address some further matters.
Senator Bukdick. I just have one or two questions. Then you can
respond further, if you wish.
IVIr. LocKHART. All right.
Senator Burdick. You stated in the opening of your testimony
that most of this is irrelevant because it doesn't deal with his duties
as a chief judge, such as the matter of taking care of bankruptcy
matters and other matters. The magistrate should be under the juris-
diction of the chief judge ; would it not ?
]\f r. LocKHART. That is correct.
Senator Burdick. Now, you heard the testimony this morning
about whether or not he was willing to assign authority over petty
offenses to the magistrates. Do you care to speak to that ?
]\Ir. LocKHART. Yes. I certainly would. That is one of the matters
I had hoped to address. I agree that the role of the chief judge would
affect his handling of the magistrates question. I also agree that
there probably is something of a problem in Utah with respect to a
need for the exercise of authority by a magistrate.
But I think this kind of example illustrates, as well as can be illus-
trated, the essential conflict which provokes this kind of legislative
solution, if that's what it can be called. This is a dispute of principle.
There is a great deal of underlying concern on the part of Judge
Ritter, part of which Mr. Westphal previously expressed, with respect
to the proper status and role of a magistrate.
And that underlying background, I think, was thoroughly laid
out in the correspondence. He is, I think, properly concerned that
if a magistrate is to exercise that kind of trial authority that he should
be independent and full time.
In addition, I should say that on a number of occasions I ap-
proached Judgf Bitter while I was the U.S. attorney to attempt to
persuade him from my viewpoint that it would be appropriate to
authorize trial — magistrates' trial of petty offenses.
His response was a philosophic response and I think reflects
nothing with respect to the — excuse me.
Senator Burdick. I'm a little bit concerned. There may be a vote
on right now. There will be a recess for a few minutes.
fA short recess was taken.]
Senator Burdick. You may continue.
Mr. LocKHART. Senator, I believe we were discussing the magistrate
question and the position that I was leading up to was simply that
it seems to me quite apparent that this is an example of the kind of
difference of opinion with respect to judicial judgment — the court's
concern about the dangers of abuse of less than a full-time magistrate.
I believe there is another element present. I have heard Judge
Hitter expound upon his concern that if the power of arrest and
petty trial for minor offenses in the national parks and national for-
ests and so forth were too readily available, there would be a tend-
ency to petty abuse by enforcement officials who are poorly trained,
who are not trained to be enforcement officials, but are rather forest
165
service people or national park service people who have had no ex-
perience with enforcement.
Now, that's not necessarily a ground for rejecting the magistrate
role, but the point of the matter is that it is a principled concern
which is appropriate to the judiciary. And if the U.S. Attorneys
Office disagrees with that position, the proper approach is to resolve
it in the courts by making the request that your counsel has sug-
gested for authority from the 10th Circuit to require magistrate trial
authority.
Now, "those kinds of disputes of principle, it seems to me, are at
the heart of most of the discussion that we have been having. And
it is perhaps disappointing to the prosecution and it is disappoint-
ing to the State attorney general to have a judge on the bench who
does not roll over and play dead whenever they appear ready for
trial or not ready for trial perhaps.
But the essence of the matter is principled dispute on almost every
issue that these people have raised. They are entitled to their day in
court, but the judge is entitled to take a tough position; and those
things are at the essence of the legal process.
The grand jury question has been addressed here and I had some
experience with that. And the present U.S. Attorney properly re-
cites the essence of that experience, but let me fill in some details.
I did, in fact, agree to an order in — I guess it was April 1975 or at
least it was shortly before the end of my tenure in that office— in
which I agreed that the scope of the issues before the grand jury
should be limited to certain matters. The fact of the matter is, how-
ever, that there were no other pending matters for grand jury atten-
tion at the time that that order was entered.
All of the matters then pending for grand jury attention had been
directed to the grand jury. Indictments had been returned in all of
the less significant cases. i?here were a couple of major investigations
going forward under the administrative supervision of the Antitrust
Division. And those, I felt, were important matters.
Now, we make a great fuss about the number of days of grand jury
sitting, but in fact that grand jury was empanelled in February of
1975 and it was not dismissed until December of 1975. And the num-
ber of days of sitting had more to do with the lack of preparedness
or readiness to present matters by the Antitrust Division that it did
with the judge's willingness or unwillingness to hear the matters.
Now, that may be an appropriate matter for this committee's con-
cern with respect to other kinds of inquires. I think there is reason
to be concerned about the structure and limitations upon the readiness
of the Antitrust Division to proceed in some of these matters.
I don't know the facts about that. They may have not — they may
have had very good reason not to proceed. They had to begin with
some factual inquiry, an investigation, which presumably laid the
groundwork for later inquiry. But whatever the reasons, the point
of the matter is that there were pending only those two investigations
and that they did continue throughout most of 1975 or that the grand
jury was available for proceedings.
Are there any other matters that
Senator Buedick. You say the grand jury was in session in 1975
from February until December?
166
Mr. LocKHART. Well, I don't remember the date on
Senator Burdick. Or November?
Mr. LocKHART. I'm sorry. I may have misspoken. I don't remem-
ber the date on which the grand jury was dismissed. But it was cer-
tainly clear that they were sitting, convened, and not dismissed
throughout the major part of 1975.
Senator Burdick. What other matters would come under his jur-
isdiction as chief judge other than bankruptcy, magistrates, grand
jury? What else would it entail as— —
Mr. LocKiTART. The grand jury would not come under ■
Senator Burdick. Special duties of the chief?
jMr. LocKiiART. I think Ave should be clear that in talking about
the grand jury, we are addressing it only in the very general sense
of relevance that Senator Garn has suggested liecause the role of the
grand jury is subject to the assignment rule with respect to criminal
cases.
Other administrative m.atters other than the handling of the clerk's
office, about which no complaint has been made, the handling of bank-
ruptcy, about which no complaint has been made, the handling of
probation and parole, about which no complaint has been made. I
know of no other relevant functions of the chief judge.
It seems to me that the magistrates role is the only role. Let me
point out something else about this. Let's assume that all of the sub-
stance of what these comments have to offer should be demonstrated.
I certainly reject out of hand most of the complaints about miscon-
duct, but let's assume that those are established.
The effect of this bill would simply be to adopt the present assign-
ment rule in the State of Utah with respect to assignment of cases
and the present effect of that assignment rule would be to move Judge
Hitter's authority to the northern district, where he would be acting
as the same, independent, perhaps sometimes crotchety Federal judge
in the northern district, as he now is in the central district. That would
be the present effect of the assignment rule because the assignment
rule is drafted in terms of assigning cases between the "chief judge"
and "associate judge" on tliat district court.
The desire on the part of Mr. Hansen, who appeared before me, is
that this matter really ought to be before tlie Judiciary Committee of
the House with respect to an impeachment suggestion — in fact. Mr.
Hansen attempted to promote such a proposal before the State Bar of
Utah. Pie offered the same pile of irrelevant information which deals
mainly with substantive questions, as you've seen, rather than with
conduct, and could not obtain a single vote from any bar commissioner
urging that the matter be taken up for impeachment. And, indeed,
one of the top level conservative members of the bar commission at
the meeting of the Utah State Bar stood up and I think in a conscien-
tious statement from the heart said in substance, "I have been greatly
concerned about this matter. I have examined all of the evidence sub-
mitted, and I find nothing on the evidence that would suggest the ap-
propriateness of a referral to the House of Kepresentatives."
Senator Burdick. Hoav many bar commissioners are there in Utah?
]Mr. LocKHART. Oh, boy, you've got me — roughly six or eight.
Senator Burdick. Do you have any questions?
Mr. Westphal. I have none, Mr. Chairman.
167
Senator Burdick. If you have notliing further, thank you for your
testimony.
Mr. LocKHART. Thank you.
Senator Buedick. Our next witness is Juclo;e David T, Lewis, chief
]*udo:e, U.S. Court of Appeals, Salt Lake City, Utah. Welcome to the
committee. Judofe.
Judge Lewis. I'm am glad to be back, ^fr. Chairman.
Senator Burdick. Judge, can I make a contract with you ?
Judge Lewis. I know what the contract is, and you don't have to put
it in words. You want to be free by 12 :30.
Senator BmoicK. If it's all right with you, I'll stay here until 12 :15,
and you can finish with Mr. "Westphah if you wish. Otherwise, you can
come back after the joint session. Which do you prefer. Unless you can
finish in 10 minutes.
Judge Le-wis. Well, let's see what happens. I have no objection to
coming back.
Senator Burdick. Thank you.
Judge Lewis. And I don't want to be accused of sluffing the question
off in any way. It is of importance both to me as chief judge in the
circuit and certainly of importance to the people of Utah and the bar.
STATEMENT OF HON. DAVID T. LEWIS, CHIEF JUDGE, U.S. COURT
OF APPEALS, SALT LAKE CITY, UTAH
Judge Lewis. I favor the bill. In reviewing the legislative history"
of it. it seems quite apparent that the principal purpose of the bill is tc
have uniformity in chief judgeships at the district level. Senator East-
land so stated and when the amendment, the grandfather clause, came-
up. he submitted to it and made the statement that attrition would take
care of the problem and it did with the exception of Chief Judge
Eitter.
And it has persisted since then. I disagree with the statement that
the bill is limited only to him. The subject of the tenure of chief judges
is one of great importance in being considered in many places and by
many committees of the Senate. And the commission in charge of ap-
pellate revision has recognized that the chief judge of a circuit — of
course, their inquiry is limited to the appellate court — shall it be for a
term certain of 7 years and one term only.
That philosoplw. if that recommendation is good — and I testified
earlier before another committee on that, indicating that I had no
objection to it, that basically it would be better to get rid of a bad
cliief judge at the end of 7 years than to perpetuate a good one. And
the theory of the committee there was that 7 years is a good enough
lerigth of time to put in whatever administrative reforms you think
needed, implement them, and see what the result is.
Now, if that's the problem — and I think it's one of the basic prob-
lems— is how long should a chief judge serve regardless of whether
he is on the district or on the court of appeals. It's utterly inconsistent,
in my mind, to say that it is desirable for this Nation to turn over the
chief judge of the circuit every 7 years and to perpetuate this grand-
father clause.
Uniformity hasn't been obtained and he has been chief judge ever
since his appointment in 1949. It's just on principle. I think the
168
ori^nal purpose of the bill, setting the age of 70, is frustrated, in fact,
by this perpetuation. And second, if it's desirable to have a turnover of
7 years, I don't see why in the world this one should be perpetuated
ior any particular reason.
Now, in your letter to me, Mr. Chairman, you asked me to give
primarily f'actural comment on this subject and you specifically ask
what has happened to the "effective and expeditious administration
of the business of the Utah District Court since Judge Kitter attamed
the age of 70." Now, those words "effective and expeditious adminis-
tration of business" are lifted from the statute pertaining to the powers
of the Judicial Council of the circuit.
And I assume, by using those words, that you place some significance
on that aspect of it and I think you properly should. So in my pre-
pared statement, I have attempted to analyze a few of the problems
that have happened there. I think it's a fair statement to say — and I
leave it to others as to what the reason is — that the overall adminis-
tration of justice in Utah is not and has not been for a goodly number
of years all that we could hope for.
T?here's constant turmoil and was during the entire tenure of Judge
Christensen and Judge Kitter and it hasn't stopped. The first time I
participated as a member of the Judicial Council in the 10th circuit in
matters pertaining to Utah was in 1958 when the basic dispute arose
as to the assignment of cases.
And we had a full hearing on it. Judge Kitter and then Associate
Judge Christensen appeared to testify. Judge Kitter was assigning the
cases arbitrarily. There was a legitimate dispute between the two of
them. We settled that administratively, pursuant to our specific power
granted under 173 to so do and we had a genuine dispute. We issued
that order in 1958, divided the work as best we could, and things went
along pretty good until 1965, until another dispute arose between the
same two judges. And these are administrative matters I'm talking
about entirely.
When the new facilities, court facilities, at Ogden became suitable
for use. Judge Kitter wouldn't go up there ; he didn't approve of the
building of them and he wouldn't hold court in Ogden. So a dispute
arose as to our old rule, what we were to do about that. We had another
hearing on that.
We divided the work differently and that's what happened when we
kept Judge Kitter in Salt Lake and we gave the whole northern divi-
sion to the associate judge because he was willing to travel.
Incidentally, Mr. Westphal, they are both resident judges in Salt
Lake, A third dispute arose, this time recent, among Judge Kitter,
Judge Christensen, and Judge Anderson, who is the current associate
judge.
That dispute was concerned with the cases that had been assigned to
Judge Christensen when he retired from active status. Judge Kitter's
attitude at that time was that the original administrative order of the
Council had been directed to him and to Judge Christensen personally
and that wlien Judge Christensen took senior status the order had no
further force or effect.
We didn't agree with that so we issued a third order saying that
Judge Anderson had inherited Judge Christensen's calendar that had
been assigned to him and to the position, not to the persons. We rejected
169
Jud^e Christensen's claim that he owned them himself regardless of
the fact that he had retired or taken senior status.
And we ordered Judge Kitter, who was then assigning these cases
to himself, to reassign them to Judge Anderson and let him do it,
handle them. Judge Ritter openly deJfied that order, which brought
into play the power or lack of power that the Judicial Council has.
It also reached us in the form of a writ of mandamus because Judge
Ritter called one of those cases before him, in direct contravention of
the order of the Council, and as you are well aware, the wording of
section 332(d) says, "The district judges shall promptly carry into
effect all orders of the Judicial Council."
Senator Burdick. Judge, the witching hour has arrived.
Judge Lewis. Oh, yes. It came quick. Whatever you say. Senator.
I'll come back, if you wish, or I could stay with counsel. I don't care
which.
Senator Burdick. It's your choice. I'll be back here at 1 :B0 or you
can continue with counsel now.
Judge Lewis. "Well, I would like to talk to joii about your concept
of the Judicial Council. After my fifth appearance before Senate
committees — and I caught the dickens on both sides of it — I've been
accused of being too aggressive and too lax on it. And I think a little
oil from this subcommittee on that aspect of it, regardless of this bill,
might help tliis problem and others.
Senator Burdick. Well, then, you would prefer to come back at
1 :30 ?
Judge Lewis. I think I would, yes.
Senator Burdick. OK. We will recess until 1 :30.
[Whereupon, at 12 :15 p.m., the subcommittee recessed, to reconvene
at 1 :30 p.m., this same day.]
APTERNOON" SESSION
Senator Burdick. Judge Lewis, you may continue.
Judge Le-\\is. JNIr. Chairman, when we recessed, I believe I was
mentioning the third Council order issued relative to the assignment
of cases, which is within the period since Judge Ritter became TO.
As I say, he openly defied the Council order and he set the case for
trial before himself — one of the cases in this group, several of them.
He called one up and one of the parties asked for an application — to
file an application for writ of mandamus, which, of course, was tied
into a particular case. So we were acting in a judicial capacity when
we considered that.
And we issued a writ of mandamus, telling him to transfer these
cases back to Judge Anderson. But he held his hearing, notwithstand-
iiig the writ and the Council order. He had them come down to court,
which, of course, put the bar in a terrible position. The}' had conflict-
ing judicial orders and the Coimcil order.
One side was willing to go forward and the other side appeared,
but refused to participate, saying they were obviously in contempt
of one court or another, which, of course, is a miserable situation to
exist at all. A couple of days later Judge Ritter issued his own order,
dividing the cases between himself and Judge Anderson, exactly the
170
way that the Council order divided them, and purporting to act under
his own order, lie assigned this case back to Judge Anderson.
That order is still on the books down there and Judge Anderson
has never acquiesced in the fact that it isn't the order he is acting
under. He is acting under the Council order and not Judge Kitter's
personal order.
The result is the same. We did nothing further after our order,
we thouglit, had been complied with. If Judge Ritter wanted to think
it was his order, why, we didn't see any use in making any further
fuss over it. Bat it's still there and that unhappy situation could be
avoided, I think, any repetition of it, if this bill is passed.
There's no other chief judge that I know of who has ever defied
an order of the Comicil in that manner. Now, those aren't the only
Council orders that we've issued on this or related matters pertaining
to Judge Ritter, but they predate his 70th birthday.
One was, for instance, where he refused to allow any filings in the
clerk's office on matters of naturalization. He just wouldn't accept
them, so they had to go to State court. And we issued a Council order
telling him he had to accept them and to hear them. And then Con-
gress passed an act to back that up. That became moot.
We presently have pending before us, as other witnesses have testi-
fied, a number of writs directed against him, some seven in all, two
of which are aimed at administrative orders, one of which was an
order of our Council designating the rules to apply to whom land
under what conditions people had free access to the clerk's office.
And it has been accepted generally throughout the circuit as what
the courts were doing anyway. Judge Ritter is accused, at least, with
the pending writ, of having forceably ejected a person he considers
undesirable from the building who was attempting to get some infor-
mation from the clerk's office.
So administrative matters are in some turmoil there and always
have been. As far as the assignment of cases or relating matters. I
have no doubt in my own mind that the Council has priority to take
hold and to issue the orders.
The difficulty is when a district judge defies the orders. As far as I
know — and I don't know of any court in the Nation that's been more
exposed to it than the 10th circuit has — we've had a judge in Oklahoma,
as the Senator is well aware, that we got in a pack of trouble over —
both the Council and the Nation and everything — because we tried
to handle that matter by Council action. And I was intensely inter-
rogated before another Senate committee on that, severely criticized
for the order of the Oklahoma case and a little unhappy about it be-
cause I dissented on it. I agreed that we had gone too far — we didn't
have the power.
Now, press reports in Utah — and, of course, T don't know where
they get their information — ^liave consistently said that one of the
effects of this bill would be to take away Judge Ritter's power of as-
signment. I think the Council has done that and done that a long time
ago. We've modified it and our present order is in effect.
And it is being complied with — subjectively Judge Ritter is com-
plying with his own order, but actually it makes no difference as far
as we're concerned, except it might surface again and we'd have a.
pack of trouble again.
171
I think the power of the Council is clear in that matter and when we
pass to the matter of the magistrates, I don't think the Council has
any power whatsoever to do anything about it. And I'm deeply con-
cerned about that — the general administration of justice in Utah.
Judge Bitter — oh, about 2 yeai-s ago — summarily discharged his
magistrate and I assume that at the time he did it, he didn't realize
that the term was for a term certain and that you couldn't suinmarily
remove a magistrate, the same way 3-ou can a clerk of court. They are
in there unles they — they are entitled to a hearing — can be removed for
cause.
There was a time when this magistrate who was doing Judge Hitter's
limited functions as a magistrate was not being used at all, but was
drawing a full salary for it. I personally interfered with that, not as
anything more than a native Utahan who was on a higher court,
saying I thought it was intolerable to have an employee drawing
$15,000 a year who was doing nothing. He had no duties and wouldn't
be used. And they got together and they agreed to switch magistrates.
And the Ogden magistrate would travel to Salt Lake and the Salt
Lake magistrate would travel to Ogden.
And then when the term expired, that position was never filled. So
at the present time we have one part-time magistrate, who does noth-
ing except conduct preliminary hearings. Xow, that doesn't comply
with my concept of what Congress intended by creating magistrates.
I think it's a gross failure not to activate and use them and espe-
cially in Utah, where distances are so great and w'e have so many
military installations and national parks, where traffic control— all
kinds of controls within there — there's no use making an arrest be-
cause it never reaches a court or a magistrate.
Judge Anderson has tried a few of them, such petty things as some-
body carving his initial on a tree in a national park. Well, of course,
that is not — that's a complete waste of judicial power, I think, when
magistrates can and should do those things.
I've received personally many complaints in that regard — the Justice
Department, of course, the Department of Agriculture, the Forest
Service, the Wildlife ]Management, General Services. They can't even
regulate parking in the Federal buildings there because if they issue a
ticket that's the end of it. Nothing ever happens. And as soon as people
find out that nothing is going to happen, why, they are going to park
anywhere and it is utter confusion.
i personally have suffered that difficulty in my own case. I can't
keep my own parking place clear. ^
I can trulv say that in my considered judgment that is a failure
of administrative work and utilization of the existing remedies for
such a thing. Some years ago Utah had one of the worst — passing to
another subject — records on the utilization of juries. That has im-
proved and I have attached to my written report the administrative
office report on such things and which contains the comment that it
is lar<reTy due to Ju.dge Anderson's reAnsion of his use of the juries.
Judjre Eitter is going along the same way.
The Bankruptcy Court is administered well, always has been.
Judsfc Ritter made an excelleTit appointment. The man is competent.
Everything is fine in that regard.
172
I don't know what the chairman's attitude is about the powers of
the Judicial Council, but we think that we've done everything we can^
formally, informally, to dilute the turmoil that has existed in Utah
for a long, lono- time. It surfaces on minor matters, where persuasion
has been effective.
But we are the only circuit that I know of where we have had any
district judge openly defy Council orders. Early — I think it was in
1958 I'm not certain of the date — we wrote in the — what's the famous
Indian Horse Case? — in which we reversed Judge Hitter and sug-
gested that the record indicated that he felt so strongly in favor of
the Navahos that we suggested to him that he let some other judge
hear the case.
It came — he stated in open court that he wasn't going to follow
any suggestion of the circuit court, the court of appeals, and proceeded.
And they, again, filed a writ asking for enforcement of what we had
suggested, which we did. And I had some doubt about whether or not
the court of appeals had the power to make findings from a record
that a man, district judge, was disqualified — and I'm no advocate of
the big brother system on the court of appeals trying to run the dis-
trict courts in any way.
But we backed that writ up with a Council order, thinking perhaps
that the wording in 332 might bolster the effectiveness of it. And
Judge Hitter sued us with the original writ in the Supreme Court,
alleging that the Council order was unlawful, that we had no power
to issue any orders because any and all orders were an interference
with the independence of the district court and applied for certiorari
on the judicial writ, both of which were summarily dismissed by the
Supreme Court without necessity of anything on our part and were
dismissed at the instigation of the Solicitor General.
There are other matters that I haven't treated in detail in my writ-
ten statement, but I wasn't sure how far you wanted to interrogate
me on them. They do affect the administration of justice in Utah
and they are administrative matters. It has been pointed out to this
committee earlier today that there are no written local rules affecting
the court as a whole.
Jud.Te Christiansen, when he was an active judge, formulated some
of his own. We still have them printed. Judge Eitter wouldn't approve
of them and wouldn't approve the expenditure of money for that
purpose. We handled that informally by asking the administrative
office to expend the money to let Judge Christiansen publish his rules.
Thev complied with our request and it was done.
Thev never met regularly to discuss the business of the court. I
don't know whose fault that is. It takes two usually to create that
situation in some way. But it is done everywhere else. Every other
district court in the country — the judges meet to discuss their general
problems. And I don't think it improper for me to state that I think
the cause, the uniqueness of the two-judofe court, where the vote of
the chief judge is a majority, if they disagree on such things, has
been the basis of it. T\Tiat's the use consulting? What's the use doing
anything because he's going to do what he wants to anyway and he
has a statutory risfht to do it?
Judge Christ ensen has been very unhappy because when he retired
he was never asked to participate in district court cases. Since he took
173
senior status, I have assigned him regularly to the District of Utah,
but he has never been utilized because I don't have the power to give
him a particular case. I can assign him to make him available, but it's
up to the judges to use him.
These matters are important. I see no way the Judicial Council can
solve them. I repeat that I think the Council has done everything they
can. We've handled things informally. We've done it by persuasion.
We've done it by formal order. And eveiy time an important order
comes down, it is defied and we are uncertain as to whether we can
do anything about it. If they issue one order, there's not much use
issuing another one.
It's my view that we don't have the power to do it. We're acting in
an administrative capacity without any sanctions that we can invoke.
A pending writ we have asks to hold Judge Ritter in contempt for
violation of a Council order. I don't think we have that power.
If I attempt to recommend to the Council that we do it, what would
happen, perhaps, is what happened earlier with Chandler, and the
first thing we know, I'll be before the Separation of Powers Commit-
tee trying to justify why we have interfered with the free independence
of a district judge.
Those powers should be spelled out, Mr. Chairman, in some way.
As I indicated in my preliminary statement, I've lived in Utah all of
my life and have lived with this problem all of my judicial career.
It has been an uniileasant thing for me and frustrating.
I've been criticized both ways for being too aggressive and not
aggressive enough. I'm open to suggestions and I'm open to any ques-
tions that you want to ask me about anything I've mentioned. There's
another power, of course, which is inherent in the chief judge and
which would dispell the cure, and that's the fact that he has the sole
power, naked power, to appoint any officer of the court, whose dis-
agreement with the chief judge is in — he summarily has discharged
a clerk recentl}', chief clerk of the court. It has been vacant for about
60 days or so, as far as I know. It hasn't been filled since I left Salt
Lake. That condition occurred once before and there was no clerk
appointed for a long time.
I will just repeat the conclusion that while tliis bill won't cure
many of the things some of the earlier witnesses have talked about, it
will cure some things and I think it would cure the magistrate prob-
lem immensely and quickly. I'll be glad to answer any questions that
you might think proper.
Senator Burdick. Thank you very much. Judge.
It wasn't clear what happened in the magistrate situation. Has he
refused to ask for more magistrate help ?
Judge Leavis. Refused to do what? I didn't hear your question.
Senator Burdick. Has Judge Ritter refused to ask for more magis-
trate help?
Judge Lewis. He let that term expire without reappointing any-
body. The magistrate is controlled — initiated and controlled, the
number and the salary — by the initial analysis the administrative
office made, which was for four. Of course, Utah has grown quite a
bit since then and if you don't use them, you don't get them.
Each district is analyzed as to what the magistrate is doing, what
duties he has, what time he spends on it. And if you don't appoint
78-678—76 12
174
anybody to these offices, they are taken away from you, and right-
fully so. There's no use having — and that's how tliat operates.
The administrative office makes a survey. It is referred to a com-
mittee of the Judicial Conference and the Judicial Conference makes
a recommendation, based entirely on the utilization. There have never
been more than two part time and now there is only one, very com-
petent man, but he is doing nothing but preliminary hearings,
absolutely nothing.
Senator Burdick. Well, I know how the selection is made, but is
there any input from Judge Ritter ? Has he ever asked for considera-
tion of more magistrates?
Judge Lewis. No. He didn't even fill the ones he had allotted to
him. There are a lot of communications in my written report in which
he says he is going to assign all of these duties to them and that they
need them and they are going to use them to the fullest, but they never
implemented it — never did.
Senator Burdick. One of the problems the committee will have to
wrestle with, as I see it, is: Suppose the facts you've given me this
morning, and have been given by the other witnesses, suppose they
had occurred when Judge Eitter was at the age of 67 rather than 77.
What would be the procedure ?
Judge Lewis. On what problem ?
Senator Burdick. Well, removing him from the chief judge status.
Jude:e Lewis. I'm not sure I understand your question. If he
was 67?
Senator Burdick. Yes. Suppose he hadn't hit that magic 70, how
would you proceed?
Judge Lewis. You wouldn't.
Senator Burdick. Well, then, there's no remedy in that situation;
is there?
Judge Lewis. If he were 67?
Senator Burdick. Yes.
Jud<]re Lewis. No. You've iust got a judge that isn't performing
well. It won't happen, Mr. Chairman, on a multiple-judge court. If
you have a chief judge that can be outvoted — he is outvoted. It lies
with the judges. It isn't an inherent power of Judge Ritter to do this.
He has the power only because it's a two-judge court.
Senator Burdick. Well, as I understand, the grandfather clause
cnlv applies to a two- judge court; isn't that correct?
Judge Lewis. No.
Mr. Westphal. That's right.
•Tudf^e Lewis. Well, yes. But it applied to two- judge courts at that
time. Utah is the last survivor. It still has two. There were other two-
judffe courts at the time and some of those still sunnve with the same
chief judge. They now have four judges and none of them have reached
the age of 70 — but there's only one. He's in the South — I think the
southern district of South Dakota. He must have been very young when
he was first appointed.
Senator Burdick. In other words, this proi^edure we're using here —
or sought to be used, I'll put it that way — is not a direct approach to the
problem ?
Juds^e Lewis. Well. I'm not sure. I wouldn't say unequivocally "no."
I get back to the basic concept that the Senate is exploring and every-
175
body is exploring as to the tenure of the chief judge, that you don't
want to perpetuate a chief judge at any age if he's out of whack with
the modern procedures and modern innovation.
This bill, for instance — not "bill," but the recommendation of the
Commission on Revision of Appellate Courts — I would probably be
the biggest target for that. It would take me right out 6 years before
I turn 70. I have no objection to it — I so testified. I think there's a lot
of merit to — chief judgeships should turn over. Senator.
Senator Burdick. I know, but 31 judges have had the benefit of this
law. Now we come to the 32d and Ave say "no."' That's what I'm saying.
When Judge Eitter steps out, this law automatically expires, this
grandfather law.
Judge Lewis. Well, there will be some changes made if he loses his
chief judgeship. Of course, he remains on the bench and 99 out of 100
complaints that you hear about Judge Ritter are not administrative
in nature. It's a different problem. I'm not here to testify on that
problem.
But if you're on a multiple- judge court and your word is it, there's
an element of power that makes you tend to ignore the judge that
you're not very fond of. They are not consulted. Judge Anderson and
Judge Christensen were never consulted on a major, important ap-
pointment down there, except perfunctorily, ever.
Senator Burdick. Do you have any questions ?
Mr. Westphal. In the areas in which the chief judge, by virtue of
being the chief judge, has authority by reason of the statutes, you've
mentioned the referee in bankruptcy situation where he has the power
to appoint the referee in bankruptcy, you say that that referee's bank-
ruptcy office is functioning properly, as far as you are aware ?
Judge Lewis. As far as I know.
Mr. Westphal. You mentioned the operation of the clerk of court
office. The chief judge has the complete power to appoint and to relieve
of office the clerk of the court and his deputies ; is that right ?
Judge Lewis. He doesn't have that as far as — the statute doesn't
give it to him. It says that in a two- judge court that if they can't agree,
then the chief judge will do it. If they don't agree
^iv. Westphal. So tliat by virtue of not agreeing or not consulting,
under that kind of a statute, the chief judge can just arrogate to him-
self that power of appointment.
Judge Lewhs. That's right. If he chooses to do it unilaterally, the
meeting would be useless to hold. If he's not going to consult and be
guided by the other judges' wishes, it's an absolute power. It's an em-
barrassment to the associate judge in some ways because he has no
power to even discharge his own emploj^ees that are assigned to him,
nor can he direct who is to be assigned to him. He has no voice in it.
]Mr. Westphal. You say that about 60 days ago the clerk of court
was summarily discharged from his office and that the office has been
vacant for 60 days.
Judge Lewis. Well, when I say "summarily," I didn't know anything
about it until I read it in the paper. I talked to the clerk afterwards.
He thought that maybe he was taken somewhat by surprise. The asso-
ciate judge didn't know about it.
Mr. Westphal. But I take it at the present time one of the deputy
clerks of court is functioning as an acting clerk?
176
Judge Lewis. I don't know. , ., . ^ u ^-i
Mr. Westpiial. Are there a number of reports that are made by the
clerk of court routinely on behalf of the court that don't have to be
approved by the chief judge or by any other judge of the cmirt ?
JudgB Lewis. You mean reports to the administrative office?
Mr. Westphal. The administrative office and others.
Judge Lewis. I think that varies. It would depend a little bit on the
confidence you have in your clerk. ^ ^^ , .
Mr. Westphal. The probation office of the District ot Utah, how
has that functioned? ,, -r, •,
Judge Lewis. I'm not knowledgeable on that at all. I've heard no
complaints. , . -r, ^ ■>
Mr. Westphal. On this matter of the use of magistrates— I'm look-
ing at the statute, section 631, relating to the appointment and tenure
of ''magistrates. And it provides that the judges of each district court
shall appoint U.S. magistrates in such numbers as the conference may
determine under this chapter. Where there is more than one judge of
a district court, the appointment shall be by the concurrence of a ma-
jority of all of the judges of such district court and where there is no
such concurrence, then by the chief j udge.
Well, this again is one of the statutes where, by reason of the dis-
agreement between two judges on a court, the chief judge would then
have the sole power of appointment.
Judffe Lewis. That's riirht.
ISfr. Westphal. So that if one assumes a disagreement between Judge
Ritter and Avhoever has been the second judge on this matter of mag-
istrates, then that appointing power would have resided, by virtue of
this statute, in Judge Hitter ; is that correct?
Judo'e Lewis. Entirely so.
Mr. ' Westphal. And" there have been — well, as I understand the
document submitted wtih your statement— the part-time magistrate
positions at Cedar City and at Provo were never filed and their posi-
tions just lapsed and eventually the authority was taken away by the
judicial conference?
Judge Lewis. Yes. That's routine.
Mr. Westphal. Those two locations — are they essentially locations
at or near a national park ?
Jud.o-e Lewis. Well, Cedar City would be.
Mr. AVestphal. And the other one is at Provo ?
Judge Lewis. Well, Provo is quite a community itself. It would be
a
Mr. Westphal. But that was about a $2 or a $500 position, as I recall.
Judge Leavis. Well. I really don't know how they picked Provo. I
know that it's the third largest city in Utah. Ogden is right in the
heart of the military installations and Cedar City is in the heart of
the Ronthern Utah park area.
Mr. Westphal. What was authorized for Utah, as far as magistrates
were concerned, were part-time magistrates, one at Salt Lake City
and one at Ogden; right?
Judge Lewis. Yes. That was the authorization until recently.
Mr. Westphal. Now, you say one of the positions was vacant for
awhile ? Was that the position at Ogden or the one at Salt Lake City ?
177
Judge Lewis. It wasn't vacant. Are you referring to when Judge
Eitter discharged his magistrate ? He became
Mr. Westphal,. Well, I thought there were two instances : One when
he discharged a magistrate and the other when the term or authority
expired and
Judge Lewis. He didn't reappoint anybody, so it lapsed and as
soon as it lapses that way and is not filled, the judicial conference
takes it away.
Mr. Westphal. Are we talking about the same position, then, the
position where he fired the magistrate even though the magistrate
was appointed for a 6-year term ? He fired him and then did not re-
appoint another magistrate
Judge Lewis. He did not reappoint anybody, no.
Mr. Westphal. — and so, therefore, the position lapsed ?
Judge Lewis. Yes.
Mr. Westphal. But yet under this statute, the language of which
I read to you, he had the sole power of appointment assuming a dis-
agreemnt between he and Judge Anderson.
Judge Lewis. Yes.
Mr. Westphal. There was some testimony here this morning by
Mr. Child, the U.S. attorney' for the District of Utah, to the effect
that he was having some problem with receiving unduly short notice
of the setting of a calendar of criminal cases for trial before Judge
Eitter and that on one occasion he made a written motion to Judge
Eitter requesting that the U.S. attorneys office receive 21 days ad-
vance notification of the setting of such a calendar of cases for trial.
I asked ]Mr. Child whether he had ever applied to the Judicial
Council of the circuit under section 332, asking the Judicial Council
of the circuit to, by order, specify an orderly procedure for the set-
ting of criminal cases for trial. Pie said he had not.
My question to you. Judge Lewis, is, based on your experience, both
from the Chandler situation and the Eitter situation, what power do
you believe that the Judicial Council of the circuit has to remedy a
situation involving the setting of criminal cases for trial of the type
that's been described to us here today ?
Mr. Lewis. Well, let me distinguish between different aspects of
it. That would have to come under 332, as a general power of the
Judicial Council to effectuate the efficiency of a court. It would be
very undesirable, speaking generally in my opinion, for the Circuit
Council to try to impose local rules on judges. I think their judgment
is much better than ours as to how to handle their own court.
I assume that we might, from the standpoint of naked power, pro-
vide court rules for Judge Eitter, but I think it would be a gross mis-
take to try to start to exercise that kind of power, assuming you have
it, because each court operates and knows their own problems. And
if you had a set rule to give 21 days notice, it might be a serious in-
terference with the power of that judge to operate his calendar in
the way he wants to operate it.
You can't cure bad judgment by a council order. You can issue it,
but it doesn't solve it. It might create more problems than it cures
and then the next district attorney will come along and he doesn't
want that much notice.
178
The second thing, we don't initiate orders from the Council. Some-
bod}^ has to complain to us. We don't think it's our function to watch-
dog or, because we become annoyed with a certain judge, to try to go
in and issue Council orders right and left as to what they do.
But the biggest set back is that if we did that and he defies them^^
what do we do about it?
Mr. Westphal. Well, I would agree that certainly you wouldn't
want to run a judicial system whereby the Judicial Council of the
Circuit would have to step in and correct every— or try to specify the
procedure to be followed by a trial court within its circuit.
However, in light of a specific complaint, about a specific practice —
and that is, a practice of setting a calendar of criminal cases for trial
on what is alleged to be insufficient notice— do jou feel that the Judi-
cial Council, No. 1, would have the power to issue an order limited
only to correcting this particular complaint, that is, the failure to
give sufficient advance notice of the setting of the case for trial?
Judge Lewis. Oh. I think probably we could issue such an order. I
would consider it highly undesirable to do so, unless there was some
really terrible failure to
Mr. Westphal. Then
Pudge Lewis. If we could do it with the district attorney, we could
do it on civil cases, too, that the lawyer has to have so many days
notice. I don't think that really is contemplated as a function of the
Council. Those are set by the rules of procedure or by local rules of
some kind. They vary greatly throughout the Natioii as to how they
operate. I'm fearful of an overzealous Council that thinks they know
the best thing for every locality^ — their district judges. We became
very aggressive at one time. As I say, I dissented on it because I
thought we were overreaching. And ultimately I think we were taught
a pretty good lesson : That it isn't the purpose of that statute to try
to control and bind the district judge.
Mr. Westphal. In any event, you do not feel that the Council
should act on its own motion there, but it would be more preferable
if tliey acted on petition of someone
Judge Leavis. We have to have somebody officially complain. I can't
contemplate ever recommending that we interfere just on our own.
Mr. Westphal. Mr. Child has testified
Judge Lewis. One of the most important things in the operation
of a circuit, Mv. Westphal. is to keep a good relationship between
the court of appeals judges and the district judsres. It'll operate so
much better administratively and on every level if you keep that re-
lationship. Where it falls open for suggestions or advice and things
like that, when you start to wave this section 332 around and I think
it would be much worse than
Mr. Westphal. I understand and appreciate that, Judge Lewis. My
only line of inquiry because we've been asked to consider here this
morning some specific conduct by a specific judge and where the
record indicates that uj^on specific occasion, when request has been
made, the Judicial Council of the tenth Circuit has exercised some
authority — I'm just trying to see what are. No. 1, the legal limits, and
what are the practical limits of an exercise of power under 332.
And I think you've explained some of those limitations for me.
Judge Lewis. If such a petition were filed, we certainly would con-
sider it. There isn't any question about that. We'd hold a hearing on
179
it, •which we've done every time there has been a serious dispute, an
inter judge dispute, or between the Government and any judge.
I can't answer what the Council would do. I have personal opinion,
but I'd be very hesitant to start making local rules of that nature. If
it was grave enough, my attitude would be different.
Senator Burdick. Was there more than one occasion where he re-
fused to honor your order more than once?
Judge Lewis. Oh, no. He has never reconciled, never admitted that
we ever had any power. He has denied it. He has defined that one
openly. Just eyeball-to-eyeball he told me he wasn't going to obey
my order and he didn't.
iSenator Burdick. But he complied in a left-handed way by issuing
an order of his own that was similar or identical ?
Judge Lewis. Identical. And, of course, the remedy would be for
him to, in that particular case, would not be to defy us because it was
also backed up with a judicial writ — would be to go to the Supreme
Court and get relief, not to defy it under any circumstances.
Senator Burdick. Well, my question, Judge, still is : Was there any
other formal order that he defied ?
Judge Lewis. We have a present pending complaint that he has.
Senator Burdick. But that's pending in your court?
Judge Leaves, Yes, yes.
Senator Burdick. Thank you very much. Judge Lewis. Your state-
ment will be included in full in the record.
At this time without objection we introduce a letter and statement
from Judge Ritter and also a statement and exhibits from a John J.
Flynn, a resident of Utah.
[The above referred to statements and exhibits follow:]
Written Statement of Hon. David T. Lewis, Chief Judge, U.S. Court of
Appeals, Tenth Circuit, Before the Subcommittee on Improvements in
Judicial Machinery
I am pleased to comply with the letter request dated April 27. 1976, to furnish
a prepared statement of my views concerning the merits of S. 1130. a Bill pres-
ently pending before the Subcommittee on Improvements in Judicial Machinery.
I have also completed arrangements to appear in person before the Subcom-
mittee on May IS, 1978, to answer such questions as the Subcommittee and
counsel consider appropriate to the subject matter. _
I was appointed a judge of the Court of Appeals for the Tenth Circuit in 19o(>
and thus have been a member of the Judical Council of the Tenth Circuit since
that date. I became the Chief Judge of the Tenth Circuit in 1970 and have been
a mem.ber of the Judicial Conference of the United States since that date. My
residence has continuously been in Salt Lake City. Utah, from birth to the
present and obviously I have been exposed, both judicially and personally, to
the subject of the administration of justice within the District of Utah.
S. 1130, introduced bv Senator A. J. (Jake) Gain of Utah in this session of the
94th Congres. is simitlar to. or identical with, earlier bills introduced m the
Congress. The Bill contains b"t a simple amendment to section 3 of the Act ot
Congress of August 6. 1958 (72 Stat. 497), the effect of which would be to repeal
a provision in the cited Act that exempts then existent two-judge districts froni
the mandate of the Act requiring chief judges to surrender the position of chief
judge at age seventy. Excerpts from the legislative history of the Act are
attached to this statement (Attachment A) indicating the predicate of the
amendment to the original Bill whiili added the so-called "grandfather clause
to which the Subcommittee's present inquiry is directed. Of particular interest is
that Senator Eastland's forecast that uniformity under the amended Act would
be attained through "attrition" has, in main, been accomplished by passage of
time. At present Chief Judge Willis W. Ritter of the District of Utah is the
sole beneficiary of the "grandfather" provision in a district having but two judges
180
in 1958 and still having but two judges in 1976. Chief Judge Ritter was born Jan-
uary 24, 1899.
Earlier efforts to enact bills identical to S. 1130 have failed despite the favor-
able (and unanimous) recommendations of the Judicial Conference of the United
States and its members. During my tenure as a member of that Conference I have
consistently voted to recommend the several bills for favorable consideration by
the Congress. My support for these earlier versions of S. 1130 has in no way been
dependent on any personal opinion as to whether Judge Ritter is a good, bad, or
indifferent judge. I simply beheve that the uniformity concerning the tenure
of chief judgeships, as indicated to be the prime mandate of the Act of 1958 by
Senator Eastland, should be the law and that any justification for a delaying
"grandfather clause" has long since disappeared. I therefore urge that favorable
consideration be given by this Subcommittee to S. 1130.
Your letter of April 27, 1976. specifically asks me to give "primarily factual"
comment on whether "Judge Ritter'S continued exemption from the age 70 rule
has affected the 'effective and expeditious administration of the business' of
his court or has adversely affected the proper administration of justice in Utah."
I, of course, have no personal knowledge of the day by day administrative activi-
tives of any district court within the Tenth Circuit nor can I sever my judgment
as to the administration of justice within the District of Utah as before and
after a date certain such as the 70th birthday of Chief Judge Ritter. However,
I deem it proper to call to the attention of the Subcommittee several matters
affecting some problems which began years ago and have continued to the present.
ASSIGNMENT OF CASES ^
As early as 1958 a basic dispute arose between Chief Judge Ritter and the
Honorable A. Sherman Christenseu, then an active judge in the District of Utah.'
The power of assignment was then being administered solely by the Chief Judge.
This dispute was submitted to the Council and settled by its order dated Janu-
ary 28, 1958 (Attachment B). In 1965. a further dispute arose between those two
judges apparently involving the utilization of new court facilities at Ogden. Utah,
in the Northern Division of the District of Utah. This dispute was settled by the
Council order of May 24, 1965 (Attachment C). In 1971, after Judge Christenseu
assumed senior status as a district judge and the Honorable Aldon J. Anderson
qualified as Judge Christensen's successor, a dispute arose among all three
judges concerning the assignment of particular cases the details of which are set
out in the Council order of December 20, 1971 (Attachment D). This order did
not settle the dispute and was openly defied by Chief Judge Ritter who set the
disputed cases before him. This action was in direct contravention of the pro-
visions of 28 U.S.C. § 332 (d).^ However, at a later date. Chief Judge Ritter, pur-
portedly acting in his own right, entered an order of assignment identical to that
of the Council and the intensity of the controversy disappeared.
Press reports have repeatedly stated that one of the effects of the passage of
S. 1130 would be to take from Chief Judge Ritter his power of assignment. This I
believe has already been lawfully done by Council action. However, passage of
S. 1130 might well serve to negate any chance of a repetitive dispute in this area.
trSE OF MAGISTRATES
I have attached hereto two surveys of the Administrative Office pertaining
to United States Magistrates and their use within the District of Utah (Attach-
ments E, F). An examination of these reports will reveal, among other things,
that for part-time magistrates were originally contemplated for Utah with
broadsroped duties to be assigned to them. The reports indicate a continuing de-
terioration in this field of administration through nonappointment to the posi-
tions and nonuse of the full purpose of magistrates. At the present time the
District of Utah has but one magistrate (part-time) whose sole function is to
conduct preliminary hearings.
1 Copios of the controlling orders of the Circuit Council are attached hereto (Attach-
ments B, C, D).
2 Now a senior district judge and an active member of the Emergency Court of Appeals,
s Section .S82(d) states in its last sentence: "The district judges shall promptly carry
into effect all orders of the judicial council." However. I know of no stfitutory authority,
•or case law. that allows the Council to effectively enforce its orders against a defiant
■district judge. Sanctions such as contempt proceedings art traditional judicial functions
and the general function of the Council is administrative in nature. However, in the matter
of case assignments by Council order, the dispute will reach the court in its judicial
-capacity in a particular case. This occurred in this instance.
181
In a two-judge district the chief judge, in effect, has the practical responsibility
for the appointment and utilization of magistrates because 28 U.S.C. § 631 pro-
vides in pertinent part that such appointment "shall be by the concurrence of a
majority of all the judges of suc-h district court, and when there is no such con-
currence, then by the chief judge."
As a direct result of such a severely limited use of magistrates the proper
administration of justice within Utah must and does suffer. The increased burden
upon the active judges is apparent. Seldom is a petty offense prosecuted through
trial. Complaints in this regard have reached me from the Justice Department,
Department of Agriculture, and its Forest Service and Wildlife Management, Gen-
eral Services Administration, Department of the Interior, and various military
institutions and installations in Utah.
JTJBT UTILIZATION
I have delegated to the Circuit Executive the analysis of this subject. His
report is attached (Attachment G).
BANKKtrPTCT
All reports in this regard indicate effective administration.
COMMENTS AND CONCLUSION
I consider the foregoing to be the probable major fields of interest which the
Subcommittee may care to consider. However, other factual matters may be of
concern in its inquiry. Such matters include the fact that the judges of the Dis-
trict of Utah do not meet routinely or regularly to discuss the business of the
court, no written local rules are existent in the Central Di^dsion, the services of
Judge Christensen have never been utilized within the District since he took
senior status, and other matters of similar nature which are quite traditional
elsewhere. If these matters do concern the Subcommittee, I shall attempt to be
as helpful as possible during my appearance at the hearing.
Two of the members of this Subcommittee are also members of the Commission
on Revision of the Federal Court Appellate System. That Commission recom-
mended that the chief judge of a circuit serve only for a term certain of seven
years with a further limitation of one term. That recommendation combined with
the original uniformity sought to be achieved by the Act of 1958 clearly indicates,
to me, that S. 1130 should receive favorable consideration and ultimately should
be enacted into law.
Excerpts Fkom the Legislative History of the Act of 1958 (72 Stat. 457)
The initial legislative proposal regarding the relinquishment of a chief judge-
ship at the age of TO years, H.R. 985, 85th Cong., 1st Sess., which was supported
by the Judicial Conference, the American Bar Association, the Attorney General,
the Attorney General's Conference on Court Congestion and Delay in Litigation,
and the House and Senate Judiciary Committees, did not contain any provision
exempting chief judges of tuo-judge districts from the scope of the bill. The
grandfather clause first appeared after both the House and the Senate had
approved the bill, the latter occurring July 8, 1958.
On July 28, 1958, Senator Frank Church, after earlier moving for a reconsid-
eration of the bill, proposed the addition of the following amendment, inter alia,
to H.R. 985 : "'except that the amendment made by section 136 shall not be effec-
tive with respect to any district having two judges in regular active service so
long as the district judge holding the position of chief judge of any such district
on such date of enactment continues to hold such position." 104 Cong. Rec. 15250
(1958). In support of this amendment, Senator Eastland made the following
statement : "Mr. President, this second amendment [the grandfather clause]
recognizes that in a district having only two judges, the administrative duties
are not such a heavy burden upon the chief judge and do not require him to spend
a substantial part of his time in pursuing duties other than judicial. For this
reason, it is deemed desiralile not to change the present relationship of the judges
in districts where there are only two judges in active service.
"It would appear that in courts having only two judges in active service a
relationship has existed which should not be abruptly changed. Attrition will
take care of these situations, and upon the death, resignation o[r] retirement of
the chief judges now serving in such two-judge districts, the effect of the law
wiU be uniform and the provision of H.R. 985 will be enforced.
182
"These amendments meet the approval of the Administrative Office of the
United States Courts and meet any known objection to tlie bill." 104 Cong. Rec.
IS'^uO (1958) In accordance with Senator Church's amendments, the title of the
act was amended to read : "An act to provide that chief judges of circuit courts
and chief judges of district courts having three or more judges shall cease to
serve as such ui>on reaching the age of 70." 104 Cong. Rec. 15251 (1958).
In the Judicial Council of the Tenth Cikcuit of the United States
January Session — 1958
In the Matter of the Division of Business and Assignment of Cases in the
United States Court for the District of Utah
ORDER
A formal request, together with data in support thereof, to divide the business
and assignment of ca^^es in the United States Court for the District of Utah was
submitted to the Judicial Council. The Council considered the matter at a
meeting held in Denver, Colorado, on December 2. 19.57, and considered it further
at a meeting held in Denver on January 8, 1958. All members of the Council were
present and participated in both meetings. At the meeting held on January 8,
the Chief Judge and the Associate Judge of the Court for the District of Utah
were present in person ; each submitted an extended verbal statement ; and the
Chief Judge submitted a statement in writing.
The Council Finds :
fl) The Judges of the United States District Court for the District of Utah are
imable to agree upon the adoption of rules or orders for the division of the busi-
ness of, and the assignment of cases pending in. that Court ; and
(2) The effective and expeditious administration of the business of the United
States District Court for the District of Utah requires the Council to make this
order under the power and authority granted to it by 18 U.S.C. §§ 137 and C32.
Accordingly, it is Ordered :
(1) For the purpose of the division of business and the assignment of cases
made herein the Judge of the United States District Court for the District of
Utah who is senior in commission is designated as "Chief Judge" and the other
Judge is designated as "Associate Judge."
(2) All cases which are filed before the effective date of this order shall be
assigned in accordance with the practice now existing in the Court. All business
arising, and all cases filed, on and after the effective date of this order shall be
divided and assigned as herein provided.
(3) All criminal proceedings, including cases instituted under the Federal
Juvenile Delinquency Act, removal cases, and complaints for the apprehension
of material witnesses, are assigned to and shall be handled bv the Chief Judge
in each even numbered calendar year and are assigned to and shall be handled
by the Associate Judge in each odd numbered calendar year. The Judge to whom
the criminal proceedings are assigned in any calendar year shall have full con-
trol over and responsibility for the call and discharge of grand juries, the return
of indictments, arraignments, cases under the Federal Juvenile Delinquency Act.
complaints for the apprehension of material witnesses, and all other criminal
proceedings. All cases arising either by indictment returned or information filed
during the period in which a particular Judge is assigned to handle criminal pro-
ceedings shall remain assigned to that Judge even though they are not concluded
within such period. Proceedings under 28 U.S.C. § 2255 are assigned to and shall
be handled by the Judge who imposed the sentence involved therein.
(4) All proceedings und^r the bankruptcy laws of the United States, under
the immitrratinn laws of the United States, and under thp naturalization laws
of the United States, except criminal proeeedings arising under such bankruptcy,
iramisrntion. or naturalization laws, are assigned to and shall be handled by
the Chief .Tudge in each odd numbered calendar year and are assigned to and
shall be handled by the Associate Judge in each even numbered calendar year.
All proceedings instituted under either the bankruptcy laws, the immigration
laws, or naturalization laws during the period in which a particular .Tudge is
assigned to handle such proceedings shall remain assigned to that Judge even
though thev are not concluded within such period.
(5) (a) The term "civil cases" when used herein shall include all cases and
proceedings other than criminal, bankruptcy, immigration, naturalization, and
183
28 r.S.O. § 2255 oases and proceedings. Every civil case when filed shall be given
an identifying number and shall forthwith be assigned to one of the Judges of
the Court as herein provided.
(b) For the assignment of civil cases the Clerk shall prepare a set of not less
than fifty nor more than one hundred cards. On one-half of such cards the desig-
nation "Chief Judge" shall appear and on the other one-half thereof te designa-
tion "Associate Judge" shall appear. The Clerk shall also prepare a set of enve-
lope.s equal in number to that of the cards. The envelopes shall be made of mate-
rial which is not transparent and shall be numbered in sequence beginning with
the number of the first civil case filed on or after the effective date of this order.
The cards shall then be so mixed that the cards "l^earing the designation "Chief
Judge" and the cards bearing the designation ''Associate Judge" shall be in
irregular and unknown sequence. One card shall be inserted in each envelope
in such manner that no one shall know the designation appearing on such card.
The evelopes shall then be sealed, placed in numerical sequence and kept by the
Clerk in a safe place. As each civil case is filed the Clerk shall take the envelope
bearing the docket number of that case and remove the card therefrom. The
case then becomes assigned to the Judge whose designation appears on such card.
Both the envelope and the card shall be aflixed to the file cover of the case. As
required, the Clerk shall prepare and use new sets of cards and envelopes. The
sequence of numbers on each new set of envelopes shall begin with the number
which follows in sequence the last number of the previous set. The Clerk shall
administer this method of assignment so as to prevent any predetermination
of the Judge to whom a case shall he assigned and so as to bring about an equal
division of the civil cases between the two Judges.
(c) No order shall be entered in any civil case until it is filed and assigned
except :
(i) An application to proceed in forma pauperis in any civil case shall be heard
and determined by the Chief Judge if he is available and otherwise by the Asso-
ciate Judge.
(ii) If any civil case is filed with a Judge as permitted by Rule 5(e) of the
Federal Rules of Civil Procedure and such case requires immediate action, the
Judge with whom the case is filed may take such action as he deems appropriate
and then shall forthwith transmit the papers in the case to the Clerk for docket-
ing and assignment as herein provided.
(d) When civil cases involving a common question of law or fact are assigned
to different Judges and a consolidation is proper under Rule 42 of the Federal
Rules of Civil Procedure, either Judge may order a consolidation. Such consoli-
dated action then becomes assigned to the Judge to whom was assigned the con-
solidated case bearing the lowest docket number.
(6) If a Judge is disqualified to act, or recuses himself, in any case or proceed-
ing assigned to him, the case or proceeding shall then be assigned to the other
Judge.
(7) If immediate action is necessary in any case or proceeding assigned to a
particular Judge and that Judge is unavailable for any reason, the other Judge
shall hear and dispose of the matter requiring immediate attention but such
action shall not constitute a re-assignment of the case or proceeding.
(8) The division of business and assignment of cases made herein may be
altered or modified by written order signed by both Judges and filed with the
Clerk.
(9) The effective date of this order is February 20. 1958.
(10) An original copy of this order shall be retained in the records of the
Council : a duplicate original shall be forthwith transmitted to the Clerk of the
United States Court for the District of Utah to be imbedded in the records of
the court ; a copy shall be forthwith transmitted to the Chief -Judge of the
Court for the District of Utah ; and a copy shall be forthwith transmitted to the
Associate Judge of such Court.
Done by the Judicial Council of the Tenth Circuit this 20th day of January,
1958.
Chief Judge.
Circuit Judge.
Circuit Judge.
John C. Pickett,
Circuit Judge.
Circuit Judge.
184
In the Judicial Council of the Tenth Circuit of the United States
March Session — 1965
In the Matter of the Division of Business and Assignment of Cases in the
United States Court for the District of Utah
order
A request having been made that the order of the Judicial Council dated
January 20, 1958, and pertaining to the division of business and assignment of
eases in the United States District Court for the District of Utah, be modified
and amended, and the Council having fully considered such request at meetings
held upon March 22 and 25, 1965, at Denver, Colorado, the Council now
Finds :
1. The order of the Judicial Council dated January 20, 1958. vpas, in accord
with paragraph (8) thereof, amended by order of the District Court dated
May 3, 1962, and, as amended, is in full force and effect. Further reference to
such order shall include the amendment of May 3, 1962.
2. The effective and expeditious administration of the business of the United
States District Court for the District of Utah requires that such order be
amended and thus requires the Council to make this order under the power
and authority granted to it by 28 U.S.C. §§ 137 and 332.
Accordingly, it is ordered :
That the order of the Judicial Council is amended to provide as follows:
1. During both even and odd numbered calendar years all criminal cases and
proceedings in the Central Division of the District of Utah shall be assigned
to the Chief Judge.
2. During both even and odd numbered calendar years all cases and proceed-
ings of whatever kind or nature in the Northern Division of the District of
Utah shall be assigned to the Associate Judge.
3. The said assignments shall be automatically made notwithstanding other
provisions of the order of the Judicial Council ; but except as necessarily changed
by this amendment the assignments, procedures, rules and other provisions of
the order of the Judicial Council shall remain in full force and effect.
4. This amendment shall become effective on January 1, 1966.
Dated this 24th day of May, 1965.
Judicial Council of the 10th Circuit.
Chief Judge.
Circuit Judge.
Circuit Judge.
Circuit Judge.
Circuit Judge.
Circuit Judge.
In the Judicial Council of the Tenth Circuit of the United States
November Session — 1971
In the Matter of the Division of Business and Assignment of Cases in the
United States District Court for the District of Utah
order
This order is entered pursuant to 28 U.S.C. §§ 137 and 332 and is based on and
results from the following chronology :
1. On January 20, 1958, this Council entered an order concerning the division
of court business and the assignment of cases in the United States District Court
for the District of Utah, which order was amended on May 3, 1962, by written
order signed by both Judges of the United States District Court for the District
185
of Utah and filed with the clerk and said order thereafter was on May 24, 1965,
further amended by order of the Judicial Council ;
2. On August 17, 1971, the Honorable A. Sherman Christensen retired as an
active judge of the United States District Court for the District of Utah and
assumed the status of a Senior Judge, and on that same date the Honorable
Aldon J. Anderson was duly qualified as the successor to the Honorable A.
Sherman Christensen ; the retirement of the Honorable A. Sherman Christensen
was effective upon the qualification of the Honorable Aldou J. Anderson and no
vacancy occurred in the position of associate judge for the District of Utah ;
3. The Honorable Willis W. Ritter, Chief Judge of the United States District
Court for the District of Utah, by an order unilaterally entered on October 4,
1971, which was later supplemented by a further unilateral order of November 24,
1971, assigned to himself those cases previously assigned to the Honorable A.
Sherman Christensen and pending in his court as of the date he assumed senior
status, excepting cases which Chief Judge Willis W. Ritter assigned to Judge
Aldon J. Anderson and further excepting cases which Chief Judge Ritter and
Judge Anderson and Judge Christensen agreed would be heard by Judge
Christensen ;
4. In entering his orders of October 4, 1971, and November 24, 1971, the
Honorable Willis W. Ritter, Chief Judge of the United States District Court for
the District of Utah, predicated his action on the assumption that the order of
the Judicial Council dated January 20, 1958, ceased to be effective upon the
retirement of the Honorable A. Sherman Christensen on August 17, 1971 ;
5. On November 11, 1971, an original proceeding, No. 71-1686, entitled Utah-
Idaho Sugar Company, a Utah Corporation v. The Honorable Willis W. Ritter,
Chief Judge of the United States District Court for the District of Utah, was
instituted in the Court of Appeals wherein it was alleged that the Utah-Idaho
Sugar Comi^auy was a party to litigation pending in the court presided over
by the Honorable A, Sherman Christensen as of the date he assumed senior
status, and that such litigation by Chief Judge Ritter's order of October 4, 1971,
had been assigned to the Honorable Willis W. Ritter and in connection there-
with the Utah-Idaho Sugar Company sought a writ of prohibition or mandamus
compelling Chief Judge Ritter, among other things, to vacate his order of Octo-
ber 4, 1971 ;
6. As a result of the institution in the Court of Appeals of the original pro-
ceeding mentioned in the preceding paragraph, the court directed its clerk to
inquire of the Honorable Willis W. Ritter, the Honorable A. Sherman Christen-
sen and the Honorable Aldon J. Anderson as to whether a dispute exists con-
cerning the current division of cases in the United States District Court for
the District of Utah ; and
7. The Honorable Willis W. Ritter, the Honorable A. Sherman Christensen
and the Honorable Aldon J. Anderson have now responded in writing to the
court's inquiry, and by their responses have indicated to our satisfaction that
a controversy does presently exist, and has existed, as to the division of business
and the assignment of cases in the United States District Court for the District
of Utah.
Being desirous of resolving the existing dispute as to the division of business
and assignment of cases in the United States District Court for the District of
Utah and thereby removing uncertainty in connection therewith, it is the
ORDER AND DECREE of this Council that:
1. Its order of January 20, 1958, as amended, is not in anywise affected by
the fact that the Honorable A. Sherman Christensen assmned senior status on
August 17, 1971, and the Honorable Aldon J. Anderson on that same date was
duly qualified as his successor, and the aforesaid order, as amended, continues
in full force and effect and is hereby reaffirmed ;
2. Under the terms of the aforesaid order of January 20, 1958, as amended,
the Honorable Aldon J. Anderson succeeds to all pending cases which were
assigned to the Honorable A. Sherman Christensen as of the date the latter took
senior status ; „ ^^ .^^ i. i,-
3 The Honorable Willis W. Ritter is hereby ordered to forthwith vacate his
orders of October 4, 1971, and November 24, 1971, purporting to assign himself
certain cases pending in the court of A. Sherman Christensen as of the date
the latter assumed senior status; copies of these orders are attached hereto;
4 The Honorable Willis W. Ritter is further ordered to vacate each and every
other order that he unilaterally entered, if any such there be, affecting any case
. to which the Honorable Aldon J. Anderson succeeded by virtue of his qualification
186
as associate judge for the District of Utali ; unless, however the Honorable
Aldon J Anderson specifically consents and agrees that any such order reterred
to in this paragraph shall remain in full force and effect in the interest of orderly
procedure within the District of Utah.
DONE by the Judicial Council of the Tenth Circuit this 20th day of December,
1971, at Denver, Colorado.
Chief Judge.
Circuit Judge.
William J. Holloway, Jr.,
Circuit Judge.
Robert H. McWilliams,
Circuit Judge.
Circuit Judge.
William E. Dogle,
Circuit Judge.
Judge Hill does not join in this order.
October 8, 1969.
Hon. Willis W. Ritter,
Chief Judge, U.S. District Court,
Salt Lake City, Utah
Dear Judge Ritter : We have not received a reply to our inquiry of July 7th'
requesting information on the extent to which your court may assign additional
duties to magistrates under the new Federal Magistrates Act, Public Law 90-578,
approved October 17, 1968. Section 636(b) of Title 28, United States Code, as
amended by this Act, provides in part :
Any district court of the United States, by the concurrence of a majority
of all the judges of such district court, may establish rules pursuant to which
any full-time United States magistrates, or . . . any part-time magistrate
specially designated by the court, may be assigned . . . such additional duties
as are not inconsistent with the Constitution and laws of the United States.
Under the Act the Director of the Administrative Office is required to make
a survey and formulate recommendations as to numbers, locations and salaries
of magistrates to be appointed. The statutory deadline for completing this survey
is October 17th, 1969.
Before recommendations can be formulated, we must have some indication of
the types of matters which will be assigned to magistrates by your court under
■the above provisions of law, together with a sound estimate of the workload.
Please let us know your intentions. If you would like, we shall be glad to have
someone from our office come out to Salt Lake City to confer with you.
Sincerely yours,
Joseph F, Spaniol, Jr.
United States District Court,
District of Utah,
Salt Lake City, Utah, October 15, 1969.
Joseph F. Spaniol, Jr.,
Chief, Division of Procedural Studies and Statistics, Administrative Office,
U.S. Courts, Supreme Court Building, Washington, D.C.
Dear Mr. Spaniol : In response to your letter concerning the Federal Magis-
trates Act, I wish to advise that we intend to make full utilization of the magis-
trates within the enlarged jurisdiction of the new legislation.
We shall give the magistrates additional duties in the area of civil actions
pursuant to Section 636(b) :
First, assisting the Court as special master in appropriate civil actions and
under the Federal Rules of Civil Procedure.
Second, assisting the District Judges in the conduct of discovery proceedings
in civil actions, and in the conduct of pretrial proceedings.
Third, preliminary review of applications for post trial relief with reports
and recommendations to assist the Judge in deciding whether or not there-
should be a hearing.
187
There will be opportunity in many instances for the performance of inter-
locutory activities.
Our magistrates will hear and preliminary determine every type of pretrial
motion and serve the Judge in the extremely important and burdensome busi-
ness of preparation of both the form and substance of various orders for the
Court's consideration.
A qualified and experienced magistrate will acquire expertise in examining
various types of applications and petitions, one example of which is the very
large number of habeas corpus petitions. I would expect to give to the magis-
trates all such petitions and applications, for preliminary examination, classifi-
catiou and summarization, pointing up the important contents to facilitate
the decision of the Judge. Currently the District Judge must do this for him-
self in very large part, for the young men law clerks recently out of law school
are not sufficiently qualified.
I expect to experiment with the assignments to the magistrates of every pos-
sible fuJiction that can in some measure be delegated to them without abdicating
the judicial function and consistent with the constitutional and statutory
limitations.
Of course the magistrates will exercise their specific statutory functions and
we will carefully survey the assignment to the magistrates of addition duties
so as to be sure that they will not interfere with the proper discharge of their
more regular resiwnsibiUties.
Likewise, we intend to make full utilization of the magistrates in the area
of criminal jurisdiction pursuant to Section 636 (a). The congressional author-
ization in the area of criminal jurisdiction of the Magistrates Act is somewhat
broader in that it provides :
(a) Each United States magistrates serving under this chapter shall have
within the territorial jurisdiction prescribed by his appointment —
(1) all powers and duties conferred or imposed upon United States
commissioners by law or by the Rules of Criminal Procedure for the
United States District Courts :
(2) The power to administer oaths and affirmations, impose condi-
tion of release under section 3146 of Title IS, and take acknowledge-
ments, affidavits and depositions ; and
(3) the power to conduct trials under section 3401, Title 18, United
States Code, in conformity with and subject to the limitations of that
section.
Mindful of some of the problems in connection with sub-section (3) above, the
magistrates will be allowed under certain conditions to try and to sentence per-
sons convicted of minor offenses. We note the definition of minor offense includes
misdemeanors, the i>enalty for which does not exceed imprisonment for a period
of one year, or a fine of not more than $1,000, or both.
Full utilization of the magistrates in this area is intended to be made. Con-
gress manifestly intended to relieve the District Court of a considerable number
of minor criminal matters.
As indicated by Judge William E. Doyle in his excellent and most helpful
manuscript "Implementing The Federal Magistrates Act", at page 24 there are
three prerequisites to the exercise of this jurisdiction: (1) the magistrate has
received special designation to try such offenses by the appropriate district court ;
(2) the defendant elects to be tried before a magistrate rather than in a United
States District Court, and (3) the defendant executes an intelligent waiver of
whatever right to jury trial he may have before the district court.
The foregoing is an incomplete summarization of the expectations of this
Court to utilize the services of the magistrates and to implement the Act to
f'lrther the clear purposes of the Congress to improve the judicial machinery
at the District Court level. We shall endeavor to elevate the magistrates in every
way to the full judicial status intended by Congress.
I am opposed to the use of part time magistrates. There is too great a hazard
in Section 632 (b) which permits part time magistrates to engage in the practice
of law and to engage in any other business which is not inconsistent with the ex-
peditious, proper and impartial discharge of their duties as judicial officers. I
share the apprehension of the Committee which arises from the fact that the
part time magistrate position is highly sensitive since he is both a practitioner
and a judge. In the first place, it is going to be difficult to get a competent and
conscientious man to take the position with the danger of running into conflicts
and this is so even though the earlier provision was eliminated by Congress
188
which provided that the magistrates were subject to criminal statutes pertaining
to conflict of interest.
I have observed that the Act imposes upon the Director the duty to take into
account local conditions in each district, such as the geographical areas, popula-
tion, transportation and communication facilities. Surely it is unnecessary for
me to enter into a discussion of these matters which are all matters of record
3.nd of public knowledge, available to the x\dministrative Office in Wasliington.
With respect to the distribution of business for the magistrates in this district,
T have already indicated the extensive participation by the magistrates in the
judicial business of the court heretofore handled by the Judges, which it is my
intention to bring about. An illustration of the very substantial possible participa-
tion of the magistrates is found in the 19G9 business of the United States Com-
missioner, Paul Hauseu, in the Northern Division of this Court. By July of
19G9 he had collected fees in the maximum amount permissable under the statute
and could not collect any for the balance of the year. This resulted from the
Department of Interior drive to make petty criminals out of the people who
visited the picnic areas in the various National Forests, and by the official en-
couragement which lead to many more petry offenses on air force and govern-
ment installations in the Northern Division than we had had ever before. Both
of these are the direct result of make-work projects carried on in the Northern
Division.
I certainly am opposed to encouraging officials to file petty offenses in order to
drum up business for the magistrate and this will be discontinued in this district.
I mention the matter here merely to suggest how the amount of work for the
magistrates can easily b;illoon into oversized proportions.
Suffice it to say for the purpose of making our request for magistrates to serve
this district, that we envisage more than enough work to keep two full time
magistrates very busy in the Central Division, with one part time magistrate
in addition for the Northern Division.
My experience with commissioners, particularly in the Central Division where
we have most of the criminal business in this district, is that we need two
magistrates so that at all times a magistrate is available to the F.B.I., the Treas-
ury agencies, the Narcotic agents, the U.S. Attorneys and other law enforcement
officials who at all hours of the day and night need to bring accused persons
before a judicial officer. One magistrate cannot be expected to be available on
such a time basis and it is unthinkable that we should have a situation arise
without a magistrate available.
Without any further elaboration, the request of the Chief Judge of this dis-
trict is that we have two full time magistrates in the Central Division and one
part time magistrate in the Northern Division. The basis for this request is that,
in my judgment from more than twenty years experience as judge of this court,
I can foresee more than enough work for those magistrates if we are fuUy to
carry out the purposes of Congress.
Sincerely,
Willis W. Ritter,
Chief Judge.
OCTOBEE 20, 1969.
Hon. Willis W. Hitter,
Chief Judge, U.S. District Court,
Salt Lake City, Utah
Dear Judge Bitter : Your letter of October loth regarding the use of magis-
trates in the District of Utah indicates that your court would like to delegate
a broad range of duties but gives no indication of the volume of matters to be
handled. The Magistrates Act requires that in fixing the amount of salary
"consideration shall be given to the average number and the nature of matters
that have arisen during the immediately preceding period of five years . . ."
and Judge Doyle's Committee has directed that this requirement be adhered to.
Based on the information which I forwarded to you with my letter of July 7th,
it does not appear that there will be sufficient business in Utah to justify full-
time magistrate positions and that only part-time magistrate positions can be
recommended. Because the Director's survey report containing recommendations
for magistrate positions must be completed within the next two days, we will
proceed on the basis that your court will adopt local rules under whicJi the
types of functions set forth in your letter will be delegated to magistrates under
28 U.S.C. 636, as amended, and estimate salaries based on available informa-
tion. The survey report is, of course, only the first step in establishing the
189
magistrate system nationwide. As a practical matter the system will not be
effective for another year. Meanwhile there vriW be ample opportunity for your
court to comment on the survey report and if necessary a supplemental report
can always be filed. Please let me know if you have any further questions.
Sincerely yours,
Joseph F. SPA^-IOL, Jr.
Uxii-ED States District Court.
District of Utah.
Salt Lake City, Utah, October 24, 1069.
'Sir. Joseph F. Spaniol. Jr..
Chief of the Division of Procedural Stvdiefi and Statistics, Administrative Office
of the U.S. Courts, Supreme Court Building. Wa-^hington, D.C.
Dear Mr. Spaniol: Reference is made to your letter of October 20, 1969.
referring to a letter from Chief Judge Ritter indicating that this court "would
like to delegate a broad range of duties" to magistrates in the District of Utah,
pursuant to the Federal Magistrates Act.
I have hesitated to formally express my views to the Administrative Office
or to the Committee having responsibility to make recommendations concerning
numbers of magistrates and their salaries in the hope that thei-e might still be
an opportunity to have my views considered by Judge Ritter before he made
his recommendations. However, in view of his letter I must now state that so
f-ir as I know the court as such is not committed to a broad range of duties
for magistrates and for the reasons hereafter indicated it is not at all sure that
it will be so committed. So far as I know, this court has taken no action with
regard to the matter. In any event, I have not been consulted concerning the
matter by the Chief Judge.
I was not consulted concerning the last appointment of a commissioner in the
Centrnl Division : I did not know of it until I read about it in the papers, nor has
I lie appointee even called upon me during the several months of his service here.
A similar non-consultative apiX)intment of one with no qualifications whatsoever
for the office was ruled by me not to be valid in CR 172-65, United States of
America v. James Lynn Smith, a copy of the opinion (unpublished) being at-
tached, for reasons indicated therein. In the Northern Division, where under the
Circuit Council Order I have responsibility for all proceedings, I suggested the
names of several qualified attorneys for appointment after Chief Judge Ritter
expressed a view that no one qualified could be found who would accept the office.
Vfter receiving my recommendations, and without consultation, he disregarded
them and named a lawyer unknown to me who had the most limited contact with
court proceedings.
Whatever the powers of appointment or removal by the Chief Judge alone may
or may not be under the Migistrates Act, I do not think that he has the power
to speak for the court without consultation with reference to a rule of court for
c-nlarged powers of magistrates, which miist be granted with the concurrence
of a majority of the judges as I understand it.
And it must be obvious that if he continues his practice of non-consnltative
apointments neither I nor the public will have sufficient assurance of the willing-
ne'-s or ability of magistrates in this district to serve both divisions of the court
to justify a general rule in advance covering their enlarged powers, or the fixing
of their salaries on the assumption that there should be such a rule.
Sincerely yours,
A. Sherman Christensen,
U.S. District Judge.
Is THE UxiTED States District Court for the District of Utah
Central Division
(Memorandum Decision)
United States of America, Plaintiff, v. James Lyxn Smith, Defendant.
This case was calendared for "arraignment" and came before me Deceml)er 6,
IttO.o. upon the "Report of Proceedings Before United States Commissioner". Upon
tlie basis of those proceedings the defendant had been arrested and is now held,
78-678— 7G 1;5
190
and upon their validity depends whether the defendant should be remanded to
custody or held on lK)nd for action by the Grand Jury, or to answer here upon a
waiver, if any, of indictment.
The individual signing the report as Commissioner is unknown to me except
for a momentary call at my chambers when lie announced tliat a week or so
before he had been appointed United States Commissioner by the "Court", and
except for what I have read in the press within the past few days concerning the
belated announcement of his appointment by the Chief Judge on November 10,
19(i5.
From the latter announcement it appears that while the appointee doubtlessly
is a man of excellent character and intentions, he is devoid of any legal or
related training or exi>erience except for visits as a spectator in former years in
courtrooms in England, of which country he is a citizen ; and that he intends to
retain his present bookstore position during regular hours and hold preliminary
hearings as United States Commissioner before or after the hours of his regular
employment.
The question of whether as a part of this court I should concur in such an
appointment has not been presented and is not now before me. Certainly before
I would assume to decide that question I would want to know the reasons why
he was designated, to see his application and to know more of his background, to
determine whether there are other iDersons equally or more qualified who pos-
sess some degree of legal training or experience or who could make themselves
available for a preliminary hearing during usual office hours for the convenience
of the public and the bar, and whether such appointment should not at least be
postponed until the time Qualifications are met by the applicant for United States
citixenship.
The only related question I have been called upon to decide here is whether for
the purpose of this case the appointment in question was validly made by "The
Court" and, if not, whether a criminal complaint authorized by such an appointee
furnishes a valid basis for this proceeding.
Section 631 ( a ) of 28 United States Code provides that "Each district court shall
appoint" United States Commissioners in such number as it deems advisable.
Subdivision (c) of that Section establishes a Commissioner's term as four years
"unless sooner removed by the district court". This court is composed of two
permanent judgeships. 28 United States Code § 133.
What appointments are to be made by individual judges as to the positions of
their respective secretaries, bailiffs or law clerks, the statute provides "District
Judges may appoint", rather than that the "court" may appoint applicants for
such positions. 28 United States Code § 7.51, 75.5.
Thus it is indicated that appointments for the court, with the exceptions noted,
are to be made by the court as such, rather than by individual judges. And by
28 United States Code § 756 it is made doubly clear that no individual judge,
whether the Chief Judge or an Associate Judge, has the power of appointment for
the Court, unless the judges of the Court, after first considering the matter
together, are unable to agree upon a proposed appointment. That Section pro-
vides as follows :
"756. Power to Appoint. "Whenever a majority of the district judges of any
district court cannot agree upon the appointment of any officer of such court,
the Chief Judge shall make the appointment."
It thus is to be seen that only when the majority of the court cannot agree
upon an appointment does the Chief .Tudge alone have power to make an appoint-
ment for the Court. It necessarily follows that such appointment must be pre-
sented to the judges of the court in the first instance to determine whether there
can be agreement on a proposed appointment before the possible appointive
power of a Chief Judge could become relevant at all. If there is agreement,
unanimously or by a majority of the court, the Chief Judge, or the Clerk of
Court, ordinarily reports and certifies the action of the Court. If a majority
cannot agree, then the Chief Judge under the conditional power vested in him
by Section 756 can himself make the appointment.
By the means indicated, in accordance with the clearly expressed intent of
Congress and in keeping with the minimal requirements for judicial administra-
tion, all members of the Court will be advised of proposed appointments, each
member of the Court, including the Chief Judge, if he finally has to act under
his separate power, will have the benefit of the judgment of each other judge ;
no member of the Court will be placed in the unreas(mable and often embar-
rassing ix)sition of having everyone else know an imix)rtant new appointment
191
lias been made "by the Court" when lie himself has not known that surh an
appointment was even being considered.
These reasons apply equally or all the more when the Court is composed of
only two, rather than several members, and the statutes recpiiring advance
notice and opportunity for consideration can be all the more conveniently ct)ni-
plied with in the former case.
In the present instance there was never any mention made to me by the
Chief Judge or anyone else prior to the purported appointment that the person
appointed was under consideration, or that a further appi)intiiient was to be
made at all. As far as I was advi.sod, another Commissioner, whose term had
not expired, was unremoved and had not resigned, and the Clerk of this Court
as "Commissioner Pro Tem" had been designated to assist him becau.se of illness
only a few months before. That the latter appointment too was made without
notice to me, although I have responsibility for the entire criminal calendar in
the Central Division for the present year, doe.<* not justify such a procedure but
only indicates the necessity of insistence upon compliance with the spirit and
letter of the statutes with regard to such appointments in the future.
The .situation now resulting is that I am not informed whether the "pro tem"
appointment has been terminated or whether the appointment of the Commis-
sioner who has served for many years here has been terminated or under what
conditions or with what understanding the purported new appointment has been
made, and this notwithstanding that I have the obligation of passing upon the
validity of the reports from the Commissioner in all criminal cases filed in this
division. While I have felt constrained to submit to such a situation with regard
to other appointments, it is apparent that my resix)nsibilities cannot be properly
discharged if that system is to be continued and extended. p]si>ecially with
respect to the vital position of United States Commissioner, involving as it does
sensitive areas of constitutional law, rights of the individuals charged with
crime, and the protection of the public by proper law enforcement, it is essential
that appointments be not of questionable validity. Thus, the question is squarely
presented here whether an appointee under the conditions outlined is "a Com-
missioner or other officer emiwweretl to commit persons charged with offenses
against the United States" within the contemplation of Rule 3, Federal Rules
of Criminal Procedure.
If as a member of this Court I have no responsibility to be consulted and to
consider the advisability of such apixiintments and to afford my colleague the
beneflt of my judgment with respect to them in advance, I am entitled, I believe,
to have that lack of accountability judicially determined ; and if I have such
accountability then I assume it must be determined that I am entitled to the
opportunity to express my judgment to my colleague before the appointment is
made. Far beyond any question of personal privilege is the duty to consider the
position of the defendant before me, who has been arrested upon a warrant
signed by the appointee in question, based upon a complaint only presumbly
signed before him by a complainant. If he has not been properly appointed, that
fact should be promptly recognized so that consideration properly may l;e given
jointly to his valid appointment by the Court in the manner required by statute
if there are reasons therefor or if the .judges are found to be unable to agree,
or so that another Commissioner appointed in the manner required by the statute
can be designated. For this purpose I shall hold myself available, as I always
have, to confer with the Chief Judge at any time he desires.
It is the continuing duty of the Court to inquire into its jurisdiction, federal
courts being courts of limited jurisdiction. I have concluded that the i)roceedings
before me in the above entitled case are insufficient to afford this court jurisdic-
tion to hold the defendant to answer or to otherwise proceed with the case for
the following reasons :
1. Grave doubt exists whether the individual authorizing the complaint and
issuing and signing the warrant of arrest purportedly based thereon is "a Com-
missioner or other officer empowered to commit i>ersons charged with offenses
against the United States" within the contemplation of Ride 3, Federal Rules of
Criminal Procedure, because he apparently has not been appointed a United
States Commissioner "by the Court" as required or permitted by the applicable
federal statutes.^
1 "x? T'nitpfl !'*^a<-p'5 Code. gSfiSKa). ~~>(^. Vnited F^fafpn v. Wile)ifz, 2.5 Federal Rules
Dec-i'sion 492 (D.J.X.J. 1960), afifd. 2S0 F. 2d 422 (3d Cir. 1960).
192
2. The complaint is further fatally defective for the further reason that the
purported Commissioner has not even signed it, and hence, the complaint is not
made upon oath before anyone.^
There is further difficulty with the complaint which, while not presentin;;
necessarily a question of jurisdiction at this point, would raise serious collateral
questions/ The "complaint" upon which the proceedings before me must be based
if it has validity appears inadequate upon which to base the warrant of arrest
because of failure of the complaint to indicate on its face probable cause to
believe that the offense was committed and that the defendant committed it,
negating as it does any personal knowledge upon the part of the complainant
except upon the basis of undefined and unspecified heresay not itself being
sufficiently indicated to show probable cause.*
For the reasons stated the complaint recorted by the Commissioner and the
proceedings before me are dismissed.
Dated this 6th day of December, 1965.
A. Sherman Christensen,
U.S. District Judge.
November 3, 1969.
Hon. A. Sherman Christensen,
U.S. District Judge,
Salt Lake City, Utah
Bear .Judge Christensen: I have your letter of October 24th regarding the
Director's recommendations for positions of United States magistrates in your
district. The recommendations containetl in the initial survey report just re-
leased contemplates that one of the magistrates to l)e appointed will perform the
"additional duties" outlined in .Tudge Ritter's letter.
The assignment of additional duties must, of course, be done by local rule
of court. Section 636(b) of Title 28, United States Code, provides in part as
follows :
Any district court of the United States by the concurrence of a majority
of all the judges of such district court, may establish rules pursuant to
which any full-time magistrate, or, where there is no full-time magistrate
rea.sonably available, any part-time magistrate specially designated by the
court, may lie assigned . . . such additional duties as are not inconsistent
with the Constitution and laws of the United States.
Where local rules of court, pursuant to the above provision of law, are not
adopted by the district courts, the Director's recommendations will most cer-
tainly have to be withdrawn. For your information I am enclosing a copy of
the local riiles of court promulgated in the Eastern District of Virginia when
the pilot program was first established there.
If we can be of any further assistance, please let us know.
Sincerely yours.
Joseph F. Spaniol, Jr.
Hon. Alfred P. Murrah,
Chief Judge, U.S. Court of AppeaU, Tenth Circuit, U.S. Courthonse, Oklahoma
City. bkla.
Dear Judge : This is in response to your letter of January 13, 1970. concerning
the implementation of the Federal Magistrates Act in Utah, particularly in
respect to salary schedules.
The judges of the court met yesterday and carefully considered the tentative
recommendations of the Administrative Office. We are agreed that those recom-
mendations, particularly as they deal with a magistrate for the Northern Divi-
sion, are unrealistic and imjustified in their limitations. They do not properly
present the business and necessities of that division, are based upon the assump-
tion that the magistrate there would be invested with limited duties whereas
it has been concluded that the principal magistrate in each division should have
^ Rnlo 3 Federal Rules of Criminal Procedure.
■■'Fourth Amendmenf to the Constitution of the United States; Rule 4. Federnl Rules
of Criminal Prooerlure : Ginrdponella v. Vvited l^tatex, 3.57 U.S. 4S0. 7S S.Ct. 124.5. 2 L.Ed.2fl
loO.^, (19.58) ; Vnited Fltntex v. BarienpU. 2.31 Fed. Survn. 200 (D.C.N..T. 1964) : rvited
fttntex V. Greenhei-a. •''.20 F. 2d 467 (9th Cir. 1963) ; Cf. Tanner v. Unitpd f^tnte-t. 296 F. 2<1
218 (10th Cir. 1961). in -which it was held that claimed error in designating sections
of the stqtu*-e upon which the prosecution was based (similar errors appearing in the
w.arrant of arrest). (Footnote incomplete.)
193
similar powers, and ignore the desirability of a resident magistrate with more
than limited functions in the absence of other resident court personnel there.
We also believe that the magistrate at Cedar City should have a salary some-
what in excess of that recommended by the Administrative Office because of
the long distance from Salt Lake City and the presence in the southern part
of the state of the national parks and monuments.
Accordingly, the recommendations of this court concerning salary schedules
for the implementation of the Act in its initial application here are as follows :
Magistrate for the Central Division, at Salt Lake City, Utah, with full range
of duties, $11,000.
Magistrate in the Northern Division, at Ogden, Utah, with full range of duties,
$8,500.
Magistrate at Provo, Utah, in the Central Division, with limited duties,
$200.
Magistrate in the Central Divi.sion at Cedar City, Utah, with limited duties,
$500.
In view of the precipitant increase of civil court filings and their complexity
during the calendar year 1969, full time magistrates may have to be sought in
the future. It is believed that the foregoing recommendations represent minimal
requirements at the present time if reasonable benefits of the system are to be
achieved in this district.
Conference between the judges beneficially explored a wide range of other
related problems and it was concluded that a solution of some of these aLso
\\ill be promoted by the adoption of the schedule hereby recommended.
Yours sincerely,
" >
Chief Judge.
Associate Judge.
Survey of Magistrate rosiTiojfs Administrative Office of the
United States Courts
district of utah
/. Positions cstflhlishcd,
The preliminary survey of the Director of the Administrative Oflace on the
implementation of the federal magistrates system was completed in October
1969. The following positions were recommended for the District of Utah :
Location and type Salary
Salt Lake City, part-time ^$11,000
Ogden, part-time 3. '^'^^^
Cedar City, part-time 200
Provo, part-time 200
The recommendations assumed that a full range of duties would be assigned
to the magistrate at Salt Lake City, while the other three magistrates would
perform only a limited range of duties.
Upon the request of the district judges, the recommendations were reviewed
in March 1970 with a view to the assignment of a full range of duties to the
magistrate at Ogden as well as at Salt Lake City. The following positions were
subsequently established :
Location and type Salary
Salt Lake City, part-time $11,000
Ogden, part-time '^^ 2^
Cedar City, part-time '^ttO
Provo, part-time 200
//. Cedar City and Provo
The Judicial Conference originally authorized these two positions at its
]March 1970 session. The positions were never filled. The Conference discon-
tinued the position in September 1973 based on the following recommendation,
from page 8 of the survey reiwrt :
Cedar City and Provo, Utah {$521 and $211 )
Four part-time magistrate positions have been authorized for the District of
Utah. Two of them, Ogden and Salt Lake City, are at divisional offices and have
1 Maximum salary for p.irt-tlme position at the time.
194
been lilled by the court. No appointments have been made, however, to the Cedar
City and Provo positions.
Provo is about 40 miles south of Salt Lake City, while Cedar City is located
in the southwestern corner of the state, about 200 miles from Salt Lake City.
There is no history of United States commissioner activity at either location.
FBI resident agents are located in both communities.
At the time of the original survey, the U.S. attorney advised that—
A Magistrate should, of course, be appointed at least in both Salt Lake
City and Ogden, Utah, to handle the volume of business expected in the
area surrounding those two cities. In addition, there are situations which
sometimes arise in the southern part of the state incident to the administra-
tion of the affairs of the United States in the National Parks, National
Monuments, and National Recreation Areas which require the services of a
Magistrate. I do not believe that the volume in that area of our state justifies
the establishment of a Magistrate down in that section of our state. On the
other hand, when situations do arise there, it is considerably inconvenient
for the same to be handled by a Magistrate 250 miles away here in Salt
Lake City.
Recommendation
While there may be some potential for a petty offense caseload at Cedar City
in the future, the part-time magistrate positions at this location and at Provo
have not been filletl since their authorization and funding more than 2% years
ago. There does not appear to be a compelling need for the positions, and ac-
cordingly, it is recommended that both positions be discontinued.
///. Salt Lake City and Ogden
Magistrates were duly appointed at these two locations. No significant changes
in the positions accrued until the early months of 1974. At tliat time the Admin-
istrative Office was advised that the magistrate at Salt Lake City had been
terminated by the Chief Judge. The Director thereupon wrote the Chief Judge
requesting a statement of the cause relied upon and the concurrence of the second
district judge as required by statute. No direct response was received ; however,
the office was informed by Judge Anderson that the matter v.as being considered.
On May IStli the raagi.-trate informed tliis office of the following resolution of
the difficulty :
[The Chief Judge] requests that I assist Judge Aldon J. Anderson in his
assignment of criminal matters. Since that time I have consulted with
Judge Anderson. He requests that I perform the functions of U.S. Magistrate
for the Northern Division of the U.S. District Court of Utah.
Accordingly,- as occasion arises, I t-hall travel to Ogden, Utah, for the pur-
pose of conducting necessary functions. United States Magistrate, Daniel A.
Alsup, will travel from Ogden to Salt Lake City for the purpose of per-
forming the functions of U.S. Magistrate for the Central Division.
Later that year, in accordance with established policy, both positions were sur-
veyed to determine whether they should be continued for additional four-year
terms under the current arrangement. A copy of that survey report is attached.
The survey indicated that neither magistrate had been assigned a full range of
duties as had originally been anticipated. Accordingly, it was recommended that
the annual salaries of the two positions be reduced as shown below :
Salt Lake City : from .*?12,r>72 to $6,000.
Ogden : from 9,394 to 3,600.
Pursuant to the statutory procedures, the views of the district court and the
circuit council were requested for consideration liy the Judicial Conference.
The Circuit Executive informed the Administrative Office of the council's recom-
mendation that the two positions be merged into a single full-time position. In
supiwrt, thereof, his letter stated :
It is the position of Council that there is a potentially adequate workload
to fully justify the full-time position for these two locations when it is prop-
erly utilized by the Judges of the District of Utah.
The Judicial Conference Committee on the Administration of the Federal
Magistrates System con.sidered the proposal but was not convinced that the
workload justified the conversion to a full-time position at that time. Rather,
the Committee consolidated the two jxisitions into a single part-time position
at the maximum salary for a part-time magistrate (.$15,000) in order to provide
195
an opportunity for the assignment of a broader range of duties-. Tlie combined
workload of the magistrates for the last two and one-half fiscal years has been as
follows :
Fiscal year-
1974 1975 1976 (6 mo)
Petty offenses 9
Number of trials ( .)( )( )
Search warrants 13 31 iS
Summonses (i) (i) 5
Arrest warrants,. 168 200 32
Initial appearances 176 197 26
Bail reviews 5 19 8
Preliminary exams 28 75 75
Removal hearings 6 31 29
NARA hearings 1
1 Summonses were included with arrest warrants for the fiscal years 1974 and 1975.
IV. Rules of Court
The Federal :Magistrates Act authorizes district judges to assign a broad range
of duties in civil and criminal cases to magistrates to assist in the disposition of
those cases. The Act requires, however, that each district court assess its particu-
lar needs and set forth in general rules of court those duties which may be as-
signed to magistrates within the district, as a precondition to the performance
of such "additional duties." The tiles of this office do not reflect the adoption of
such rules by the United States District Court for the District of Utah.
Court Pbofile
DISTRICT of UTAH
/. Positio)is Presently Authorized
Location Salt Lake City/Ogden.
Number 1.
Type Part-time.
Authorized salary $15, 000.
Expiration of term June 20, 1970.
//. Geograpliy
Area : 84,916 square miles.
Population: 1,059,273 (1970).
Principal Federal Enclaves : Hill Air Force Range, Wendover Air Force Range,
Dugway Proving Ground, Tooele Ordinance Depot, Zion National Park. P.ryce
Canyon National I'ark, Canyoulands National Park, Great Salt Lake, Fish
Springs National "Wildlife Refuge, Ouray National Wildlife Refuge.
National Monuments : Rainbow Bridge, Natural Bridges, Dinosaur, Arches,
Cedar Breaks, Capital Reef.
Indian Reservations : Skull Valley, Unitah, Ouray, Navaho.
National Forests : Sawtooth, Cache, Wassatch, Fishlake, Unitah, Dixie, Mautila
Sal.
///. Judgeships
Authorized Judgeships — 2
Authorized places of Population : Resident judges :
holding : 175, 885 2
Salt Lake City 69, 478 —
Ogden
IV Total Caseload of the Court— Fiscal Year 1915
CiiHl cases Criminal cases
Filed 517 Filed 144
Terminated 403 Terminated 107
Pending 499 I'ending 92
(With fugitive deftsj 10
196
V. STATISTICAL PROFILE PER JUDGESHIP-FISCAL YEAR 1975
Civil cases filed
Criminal cases filed
Total cases terminated.
Total cases pending
Total weighted caseload
Total trials
iVIedian disposition, times In months:
Civil cases
Criminal cases
National
Numerical
District
average
standing
259.0
294.0
55
72.0
108.0
72
255.0
371.0
77
296.0
355.0
59
373.0
400.0
55
27.0
48.0
85
8.0
9.0
27
3.5
3.6
46
DISTRICT OF UTAH
CIVIL CASES COMIVIENCED BY NATURE OF SUIT
Fiscal year—
1971
1972
1973
1974
1975
Total .
385
393
475
441
517
Total, U.S. cases
97
104
137
98
103
Contract ......
Land condemnation . .___
Other real property
29
1
4
9
20
3
3
23
26
1
3
14
6
1
2
6
13
-
Tort actions
13
Antitrust
1
Civil rights
Prisoner petitions:
Habeas corpus
Civil rights
Other
Forfeitures and penalties
(')
4
(•)
6
7
7
(')
0)
3
27
1
3
..
11
11
5
2
12
9
7
4
1
1
24
11
4
4
17
20
7
2
-J- - -
12
10
_.
15
27
4
1
'"I
18
Labor suits
NARA .....l^IIIII
Social security.. .
Tax suits ...'. .
All other . ;_
11
1
15
6
14
Total, private cases .
288
289
338
343
414
Contract
Real property
Federal Employers' Liability Act
Marine personal injury ,..
55
7
1
66
3
7
67
1
3
71
4
8
3
45
33
7
14
43
3
14
4
96
3
18
Motor vehicle personal injury ._
Other personal injury ^_..
Other tort actions
Antitrust
39
25
6
U
(')
(')
41
(J)
8 .. .
24
28
1
8
32
3
32
10
37
32
8
11
36
5
39
17
36
45
8
28
Civil rights ..
Commerce „
Prisoner petitions:
Habeas corpus
52
1
8
Civil rights .:..
Other ...
7
Labor suits
6
21
68
5
17
53
10
17
55
8
23
63
8
30
Another .. .
74
See footnotes at end of table.
197
DISTRICT OF UTAH— Continued
CRIMINAL CASES COMMENCED BY NATURE OF OFFENSE »
Fiscal year—
1971
1972
1973
1974
1975
Total ...
90
146
97
112
138
General offenses:
Homicide
Robbery
Assault
Burglary
Larceny and theft. .
-
3
...
7
9
16
19
-.
8
2
11
10
24
12
22
2
3
6
9
1
1
3
2
...
4
14
3
25
1
6
2
6
3
4
"f
14
13
22
9
11
12
9
3
4
1
""io
1
1
28
Embezzlement
Fraud
Autotheft ' .
16
33
8
Forgery and counterfeiting
Sex offenses
20
Narcotics laws
Weapons and firearms
'I
2
2
7
Other general offenses...
1
Special offenses:
Immigration laws
2
7
7
22
1
Other Federal statutes
12
6
11
' Not available.
' Excludes transfers.
Surveys of Magistrate Positions ADMiNiSTRATr\E Office of the
Umted States Courts
district of UTAH
June 1974.
I. PURPOSE OF SURVEY
The initial four-year terms of tlie part-time magistrates at Salt Lake City ami
Ogden are due to e-xpire on June 29, 1975. The positions are being reviewed to
determine (a) whetlier they should be continued for additional terms, and (b)
whether there should be any changes in salaries and arrangements.
//. ^yORKLOAD OF THE MAGISTRATES
The workload of the two part-time magistrates in the district has consisted
almost entirely of precommitment proceedings in criminal cases. Though Utah
encompasses a number of federal owned lands, the magistrates to date have only
di?ix)sed of a handful of minor and petty offense cases. The nature and the
volume- of their duties }iave l)een substantially h-ss rhau anticipated at the time
when their salaries were originally set by the Judicial Conference.
(a) Salt Lake City {$12,572)
Salt Lake City is the headquarters of the court and the residence of both the
district judges. The following magistrate activity has been reported here during
the last two and one-half fiscal years:
Petty offenses
Number of trials..
Search warrants..
Arrest warrants.. -
Bail hearings
Bail reviews
Preliminary exams
Removal hearings.
Fiscal year
—
1972
1973
1974 (6 mo)
1
(-)
(-)
8
92
109
8
27
8
9
(1)
(-)
15
7
106
44
117
59
4
2
29
9
2
1
198
Although it had been anticii)a(ed that "additional duties" would be assigned
to the magistrate, this has not occurred. As a result, the volume of business
is a good deal less than that coming before other part-time magistrates receiv-
ing comiiarable salaries. There is, unfortunately, no alternative to recommend-
ing a reduction in the authorized compensation of the position at Salt Lake
City during a new term.
It is recommended (a) that this position be continued for an additional four-
year term, and (b) that its salary be reduced from $12,572 to Jj^G.OOO per annum.
(li) Offdcn (^9,39 >,)
Ogden is 30 miles north of Salt Lake City and is also a place of holding court.
The part-time magistrate here has reported performing the following duties :
Fiscal year —
Minor offenses _
Number of trials
Petty offenses
Number of trials
Search warrants
Arrest warrants.
Bail hearings
Bail reviews
Preliminary examinations.
Removal hearings
1972
1973
1974 (6 mo)
1 ..
'■3'..
(-)
9
59
49
-g-
6
(-)
(-)
5
(5)
(- )
9
1
58
30
56
26
4
1
16
5
11
1
The volume of magistrate activity at Ogden has been consistent, but is out of
line with the salary of the position. It is recommended (a) that the position be
continued for an additional four-year term, and (bj that its authorizetl salary
be reduced from $9,394 to $3.G00 per annum.
/. POSITIONS PRESEXTLY AUTHORIZED
Authorized Expiration
Location Number Type salary of term
Salt Lake City... 1 Part lime $12,572 June 29, 1975
Ogden 1 do 9,394 Do.
II. GEOGRAPHY
Area : 84,916 sq. miles.
Population : 1,059,273 (1970).
Principal Federal Enclaves : Hill Air Force Range, Wendover Air Force Range,
Dugway Proving Ground, Tooele Ordnance Depot, Zion NP, ISryce Canyon NP.
Canyonlands NP, NM : Rainbow Bridge, Natural Bridges, Dinosaur, Arches, Cedar
Breaks, Capital Reef.
Great Salt Lake.
Glen Canyon National Recreation Area, Skull Valley IR, Uintah and Ouray IR,
Navajo IR.
National Forests :
Sawtooth, Cache, Wassatch, Fishlake, Mantila Sal, Dixie, Uintah.
Fish Springs National Wildlife Refuge.
Ouray National Wildlife Refuge.
199
Te«Sr>
— V Great
-- . . .xSilt
("^Hlll AT /-^ Vr JM^'S
<■•' p.nnee ■-.■,<, \ V ^ rOc<!cn
olr
•Vendover A?
; Crent fait
Vftssatch KF.
;rooele /
^ull Valley V,''
Skull Valley
•Utah Ci- ^■^
Lfik
•. Du£>ay Proving Cnis
Un sh Eorlr.es
Unlt.£.h 6nd Cure
Jr.i BcE
Cedar Cl<-v /
Cedar DreaXo-^
TT . NM
Zlon J.'?
A-^j.'P.i^ Ulfiatural Erldrc
V-^ Colorado river f n
LaV.e Povtjl
Fore 'nalr.bow lirldge t.M
UTAH
20 ^O *0
i'O loO*
200
///. JUDGESHIPS
Authorized Judgeships —
Resident judges :
2
IV. TOTAL CASELOAD OF THE COURT— F.Y. 1973
Places of holding court
Ogden
Salt Lake City
Population
09,478
175,885
Filed 475 Filed
Terminated 421 Terminated
Pending 394 Pending
(With fugitive defts.).
r. STATISTICAL PROFILE PER JUDGESHIP— F.Y. 1013
108
131
43
10
District
National
Average
Numerical
Standing '
Civil cases filed
Criminal cases filed _._ -.
Total cases terminated
Total cases pending
Total weiglited caseload
Total trials
Median disposition times in months:
Civil cases
Criminal cases
238. 0
246.0
45
54.0
106.0
84
276.0
354.0
72
219.0
314.0
66
300.0
343.0
65
50.0
49.0
44
9.0
10.0
41
4.5
3.9
55
1 Amon2 all 90 to 94 U.S. district courts.
DISTRICT OF UTAH
MAGISTRATES WORKLOAD— FISCAL YEAR 1974 (1ST 6 IViO)
Salt Lake
City
(part-time)
Ogden
(part-time)
Total
TRIAL JURISDICTION
Total, minor offenses.
Tlieft.
Food and drug.
Traffic
Other _
Dismissed/acquitted.
Convicted..
Total trials.
Total, petty offenses.
Traffic
Immigration
Hunt/fish/camping.
Other
Dismissed/acquitted.
Convicted
Total trials
Total, preccmmitment matters.
Search warrants _
Arrest warrants
Bail proceed i ngs
Bail revie/v _
Preliminary examinations
Removal hearings
122
64
186
7
1
8
44
30
74
59
26
85
2
1
3
9
5
14
1
1
2
201
DISTRICT OF UTAH
MAGISTRATES WORKLOAD— FISCAL YEAR 1974 (1ST 6 MO)
Salt Lake
City Ogden
(part-time) (part-time) Total
ADDITIONAL DUTIES
Criminal:
Pretrial conferences -- -—
Motions
Rule of 10 arraignments --- -
Other
Civil:
Prisoner petitions -
Ptrtrial conferences - -
Motions -
Special masterships - - -
Social security -.- -
NARA 1 1
Other - -- - ---
Total, all matters 131 65 196
MAGISTRATES WORKLOAD— FISCAL YEAR 1973
TRIAL JURISDICTION
Total, minor offenses -. - - — 1 1
Theft
Food and drug
Traffic
Other
Dismissed/acquitted.
Convicted
Totaltrials
Total, petty offenses.
Traffic
Immigration
Hunt/fish/camping—
Other
Dismissed/acquitted.
Convicted
Totaltrials
Total, precomrtiitment matters - 252 142 394
Search warrants
Arrest warrants
Bail proceedings
Bail review
Preliminary examinations
Removal hearings
8
9
17
92
59
151
.09
49
158
8
8
27
19
46
8
6
14
ADDITIONAL DUTIES
Criminal:
Pretrial conferences
Motions
Rule 10 arraignments
Other
€ivil:
Prisoner petitions
Pretrial conferences
Motions
Special masterships
Social security
NARA
Other
Total, all matters -.. -- - 252 146 398
78-G7S~76 14
202
MAGISTRATES WORKLOAD— FISCAL YEAR 1972
TRIAL JURISDICTION
Total, minor offenses
Theft
Food and drug.
Traffic
Other
Dismissed/acquitted.
Convicted
Total trials
Total, petty offenses.
Traffic - --- - -
Immigration. -
Hunt/fish/camping.. - - 5 5
Other - - - - 1 1
Dismissed/acquitted.
Convicted
Total trials.
Total, precommitment matters 273 154 427
Search warrants
Arrest warrants.
Bail proceedings
Bail review-
Preliminary examinations.
Removal hearings
15
9
24
106
58
164
117
56
173
4
4
&
29
16
45
2
11
13
ADDITIONAL DUTIES
Criminal:
Pretrial conferences
Motions --
Rule 10 arraignments
Other
Civil:
Prisoner petitions
Pretrial conferences
Motions.. ---
Special masterships -..
Social security -
NARA
Other
Total, all matters - 274 159 433
United States Court of Appeals,
Tenth Circuit,
April 19, 1976.
To : Hon. David T. Lewis, Chief Judge.
From : p:]mor.v G. Hatcher.
Subject : Juror Utilization, District of Utah.
Attached hereto is! a letter to you with reference to juror utilization in tlie
District of Utah. Unfortunately, it is not too definitive because, tirst, the Ad-
ministrative Otfice did not receive all of the statistical reports from the District
during some of the years in question, and, second, the statistics do not dis-
tinguish between the statistics of the two judges in the District.
There has been a marked improvement by the District from the first to the last
report. According to Verl Ritchie, this is largely due to Judge Anderson's handling
of Ills juries. Judge Ritter has continued to function in exactly the same way
with respect to his juries.
Attachments.
Hon. David T. Lewis,
Chief Judge,
U.S. Courts of Appeals,
Federal BuUdhuj.
Salt Lake City, Utah
Dear Chief Judge Lewis : The following is a summation of the ntilization of
both petit and grand jurors in the District of Utah fur the years 1972 to 1975,.
203
inclusive. The statistics were compiled from iuformation provided in the publica-
tion entitled Juror Utilization in United States District Courts published an-
nually by the Administrative Office commencing in 1972, although data concerning
Grand Jury activity was not available until 1975.
PETIT JURY
The enclosed table represents the utilization profile of petit jurors in the nation
as a whole compared with the District of Utah. Some explanation of the figures
and inconsistencies are necessary for a better understanding of the juror usage.
The Juror Usage Index is the total available juror days divided by the total
number of jury trial days. This figure was slightly higher in 197."> due to a re-
porting change.
In 1971-1974, only sworn jurors were to be counted as serving. This category
now includes all jurors selected to serve on a trial jury at a future date as well
as in trials in progress.
Trial days were to be counted only on the day the jury actually began service.
This corrected the statistical disparity which arose from counting a jury trial
from the initial swearing in of the jurors.
All of the 1973 figures are only from Judge Aldon .T. Anderson's court. The
statistics for Judge Willis W. Ritter's court were not available.
There are 94 Districts. The "rank" column indicates where in relationship to the
other Districts Utah rates statistically.
There has been a marked improvement in the utilization of petit jurors in Utah.
Although the nation as a whole has .shown better usage of jurors, Utah's improve-
ment is at a higher rate than the national average.
GRAND JUBT
Data concerning Grand Jury activity was available for the first time in 1975.
Due to the limited scope of this information, it is difficult to conclude if the fol-
lowing figures are indicative of a trend or merely a reflection of a single year.
Efficient management of Grand Jury time involves setting as many eases as
possible to be heard per session. The result would be an increase in the average
hours per session but a decrease in cost (i.e., mileage cost would be less with
fewer sessions ) .
Utah falls short of the national average in both the number of cases heard and
the number of hours per session. On the average, it is taking the Utah Grand
Jury .six hours to hear a single case while the national average is 1.5 hours per
case.
From the information available, it is impossible to tell whether the Utah
Grand Jury is taking four times as long per case due to the nature of the ma-
terial or if this delay is partially the result of poor management.
The cost per session in Utah is higher than the national average, as is the
number of jurors per session.
The following figures reflect Utah's Grand Jury Usage in comparison with
the nation :
Utah National
Number of grand jury sessions 39 7, 846
Number of cases 32 26,775
Average number of cases per session 0. 8 3. 4
Average number of hours per session 4. 8 5.2
Average number of jurors 21.7 19.9
Average cost per session $549 $505
Average cost perjuror day $25 $25
Sincerely yours,
Emory G. Hatcher.
Enclosure.
204
UTILIZATION PROFILE OF PETIT JURORS 1972-75, DISTRICT OF UTAH
Year
Utah
National
average
Rank
Juror usage index.
Cost perjury trial day.
Cost per juror day.
Percentage not selected, serving or challenged.
Percentage selected or serving.
1972
21.11
20.89
1973
24.42
20.16
1974
21.40
19.12
1975
18.78
19.32
1972
(')
514
1973
(')
498
1974
561
585
1975
508
490
1972
58.26
24.78
1973
(')
24
1974
26
25
1975
27
25
1972
20.9
29.9
1973
25.0
28.4
1974
27.6
25.5
1975
21.3
23.8
1972
61.0
55.5
1973
51.9
56.5
1974
61.3
58.3
1975
64.9
60.1
62
81
71
44
0)
(>)
76
56
94
(')
51
58
(')
47
63
48
38
68
41
29
» Not available. Reports not transmitted to administrative office where indicated.
United States District Court,
District of Utah,
Salt Lake City, Utah, May U, 1916.
Hon. QtTENTIN N. BURDICK,
Chairman, U.S. Senate, Committee on the Judiciary, Subcommittee on Improve-
ments in Judicial Machinery, Washington, D.C.
Deab Senator Burdick : I acknowledge receipt of your letter to me dated
April 27, 1976, in which you request me to api>ear on May 18, 1976, before the
Subcommittee on Improvements in Judicial Machinery to testify with respect to
S 1130 introduced by one United States Senator, Mr. E. J. Garn of Utah. You
note in your said letter that the reason for the request that I appear is my
status "as the last of the 32 judges who were exempted from the age limitation"
["grandfather clause" of P.L. 85-593 relating to the age 70 limitation upon
service as a chief judge] and that I am the "sole Chief Judge who would be
affected by such as repealer". The only issue before your Subcommittee is my
status in the administrative office of Chief Judge of the District of Utah.
In sponsoring the bill. Senator Garn has asserted as a principal reason for
introducing the measure that as Chief Judge, I have the responsibility for
assignment of cases between myself and the other judge of the District of Utah.
Senator Garn is mistaken, since the entire assignment process in Utah is con-
trolled wholly bv a special order of the Judicial Council of the Tenth Circuit
dated January 20, 1958, as amended by Orders dated May 3, 1962 and May 24.
1965, copies of which are annexed, marked Exhibit "A". Therefore, your Com-
mittee is faced with the issue involving my administrative office and the acknowl-
edged fact that the proposed law is directed solely at me in contravention of a
"grandfather clause" which was allowed to apply totally to the chief judge office
of 31 other judges originally covered by the clause.
I am deeply concerned about the constitutionality of S. 1130 which would
amend the Act of August 6, 1958 (28 U.S.C. §136) relating to service as chief
judge of a United States District Court. As you know. Congress determined in
that Act that no federal district court judge should hold the office of chief judge
past the age of 70. Congress, however, specifically exempted from the mandatory
retirement provision those judges in two-judge districts already serving as chief
judge as of August 6, 1958. S. 1130 would repeal that exemption. I believe such
an attempt appears to constitute a Bill of Attainder and is thus expressly pro-
hibited by the Constitution. (Art. 7, § 9. CI. 3) .
The Supreme Court has delned Bills of Attainder as any "legislative acts, no
matter what their form, that apply either to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on
them without a judicial trial. . . ." Utiited States v. Lorett, 328 U.S. 303, 315-6
(1946). The punishment inflicted need not be imprisonment or a fine.
"The deprivation of any rights, civil or political, previously enjoyed, may be
punisliment, the circumstances attending and the causes of the deprivation deter-
205
mining this fact. Disqualification from office may be punishment, as in cases of
conviction upon impeachment. Disqualitication from the pursuits of a lawful
avocation, or from positions of trust, or from the privilege of appearing in the
courts, or acting as an executor, administrator, or guardian, may also, and often
has been, imposed as punishment." Cummings v. Missouri, 4 Wall, at 320, 18
L.Ed, at 3G2. (Emphasis added.)
The Supreme Court has concluded that such Bills of Attainder were pro-
hibited by the Constitution for two purposes : First, to implement the doctrine
of the separation of powers : and, second, because regardless of the need for
a separation of powers, the legislature is simply not "well-suited to the task
of ruling upon the blameworthiness of, and levying the appropriate punishment
upon, specific persons." U.S. v. Broicn, 3S1 U.S. 437, 445 (1965).
Senate Bill 1130 appears to violate both of those purposes. It violates the
separation of powers by involving Congress in an effort to discipline or punish a
member of the federal judiciary, even though the only explicit disciplinary power
over judges given to Congress by the Constitution is the power to remove judges
by impeachment. (Art. 2, § 4 and Art. 1, §§ 2 and 3).
I respectfully urge you therefore to reject S. 1130 as a Bill of Attainder.
The fundamental rules involving separation of powers and the pressure and
the business of the court preclude my personal appearance at this time. There-
fore, acknowledging respect for you, for your Committee and the legislative
process, I respectfully decline your thoughtful request to appear and forward
this letter in lieu of a personal appearance. However, I ask you to read this
letter into the record of the proceedings and thank you in advance for your
courtesy. In addition, I ask that you keep the record open after the formal hear-
ing so that I may be provided an opportunity to supplement the record or even
to make a personal appearance should I deem it necessary to protect the record
of these proceedings.
The Committee should know that my office of Chief Judge involves administra-
tive duties in three major categories, i.e., the Office of the Clerk of the Court,
the Office of Referee in Bankruptcy and the Office of Probation.
The Clerk's Office is functioning effectively under procedures designed to fa-
cilitate the maintenance of current court calendars (see Schedules 1, 2, 3, 4, 5
and 6, annexed), prompt notification to members of the Bar of hearings and
developments (see Exhibit "B" annexed) and orderly preparation of records on
appeal (see Exhibit "C" annexed).
I enclose the following information as to the condition of my calendar as a
means of demonstrating underlying efficiency in the Clerk's Office and policies
which expedite litigation. As of May 10, 1976, Schedule 1 shows the number of
criminal cases pending on my calendar and the year the cases were filed ; Sched-
ule 2 shows the number of civil cases pending on my calendar and the year the
eases were filed ; and Schedule 3 describes each pending case and its present
status. It is apparent that my calendar is absolutely current and that the very
few holdover cases from prior years (1968-2 criminal ; 1969-1 civil ; 1970-3 civil ;
1971-1 civil: 1972-0; 1973-1 criminal, 8 civil; 1974-5 criminal, 19 civil; 1975-7
criminal, 118 civil; 1976-15 criminal, 61 civil) involve extraordinary circum-
stances in no way related to a failure of the administration of the Chief Judge.
In a similar vein. Schedule 4 shows the number of cases on my calendar which
have been closed for the calendar year 1975 (158 criminal and 177 civil) and
for the first four months of 1976 (43 criminal and 114 civil). Finally, Schedule
5 shows the heavy workload of the court and the results of the case assignment
orders promulgated by the Judicial Council of the Tenth Circuit.
Because the role of the Chief Judge involves practices and policies in the
Clerk's Office which would affect the progress of cases in both United States
District Courts for the District of Utah, I enclose Schedule 6, which compares
the status of the calendar for United States District Courts for the District of
Utah to such calendars in other states within the area of the Tenth Circuit
Court of Appeals (excluding the unrepresentative State of Oklahoma) and the
states within the Ninth Circut Court of Appeals (excluding the unrepresentative
State of California). With respect to pending cases, the percentage of cases
pending three years or more, the median time from filing a case to disposition
and the median time from the time the case is at issue to trial of the case, all
demonstrate that the District of Utah has a clear edge over most of the other
states within the Ninth and Tenth Circuits (see Schedule 6, italicized numer-
als). At the very least, these data demonstrate conclusively that the status of
litigation in Utah is satisfactory, even exemplary.
206
One power of the Chief Judge is the power of appointment
I am vitally concerned with the quality of my appointments.
The major appointments in this jurisdiction are the Referee in Bankruptcy,
now called Bankruptcy Judge, and the Chief Probation Officer of the Probation
Office.
Bruce S. Jenkins, the Bankruptcy Judge of the United States District Court
for the District of Utah, was first appointed in 196o.
He came to the court with a distinguished record of a scholar, a lawyer, and
a legislator. ITis work as a State Senator and former President of the Utah
State Senate, was commended by students of government, colleagues and news
media. His pioneering effort iu state government reorganization culminated in
a major reorganization of the executive branch of the Utah State Government.
During his tenure on the bankruptcy bench, a most difficult assignment, he
has achieved the acceptance and respect of the commercial and credit com-
munity, members of the Bar, the university community and colleagues nation-
wide.
At the 1975 convocation, University of Utah Law School, he was honored by
unanimous action of the faculty and the Utah Chapter of the Order of Coif by
being made the Order of Coif designate for 1975— the only judicial officer
so honored in 1975. He was so honored in part, because of his work as Bank-
ruptcy Judge and his contribution "to the law of the state and the nation."
As a member of the National Conference of Bankruptcy Judges, he was a
member of its Board of Governors and three times chaired its Committee on
Practice and Procedure.
During his tenure as Bankruptcy Judge, he has processed about 14,000 cases
and hundreds of proceedings within such cases. He has handled from 1,052
to 1,625 cases per year with an average of about I.-SIO cases per year.
He has lectured widely before credit gi-oups. Bar Associations and seminars.
His calendar is current. Indeed, he has consistently been commended by the
Bankruptcy Division of the Administrative Office of the United States Courts
for the excellence of his performance and that of the Bankruptcy Court staff.
Mr. B. A. Rhodes, the Chief Probation Officer, is a man with over twenty
years experience in the field of probation. A graduate of the University of Hous-
ton, Houston. Texas, Mr. Rhodes has a B.S. degree in Sociology. After five years
with the Harris County Juvenile Court System in Houston, Texas, he was later
hired through the Utah State Merit System iu 1961 and became a Juvenile Pro-
bation Officer for the State of Utah. Mr. Rhodes came to work for the District
Courts of Utah in 1962, and was appointed Chief Probation Officer for the Dis-
trict of Utah in 1965.
Over the past three years a small staff of probation officers have completed
a total of 912 investigations for the courts, prison system, and the T'nited States
Board of Parole, 267 of which were presentence reports for the District of Utah.
They presently supervise and administer to 260 probationers and parolees
monthly. All matters in the office are treated promptly and effectively.
We have what is recognized as one of the finest probation offices in the
country, an opinion supported by attorney.s in the District of Utah, law enforce-
ment, and members of the social service discipline from diverse areas.
The Congress is being led into a futile and wasteful quest. The proposed law
has all the aspects of an unconstitutional Bill of Attainder. The "grandfather
clause" is applicable onlv to districts with two judges, not the districts with
three or more judges (see Public Law 8.5-593, §3, 62 Stat. S97). Consequently,
the whole question would become moot upon an Act of Congress creating a
third district court judge for the District of Utah, a problem which does need
long overdue congressional attention.
The real dimension of this attack is plain when you consider that the "grand-
father clause" automatically expires by its own terms as soon as a third judge
is appointed for Utah.
That should be in the next judge bill to be considered by this very Com-
mittee. The sponsoring senator could have been doing something constructive
and of lasting benefit for his state, if he had been working for a third federal
judgeship for Utah. ^ .^^ , ...
I hope the foregoing statement will be of aid to your Committee and will
help you to turn your attention to important problems confronting the Congress
of the Ignited States.
Respectfully submitted, t>....„,.„
'■ Willis W. Ritter.
207
Exhibit "A"
In the Judicial Council or the Tenth CIROU^T of the United States
January Session — 1958
In the Matter of the Division of Business and Assignment of Cases in
THE United States Court for the District of Utah
order
A formal request, together with data in support thereof, to divide the business
and assignment of cases in the United States Court for the District of Utah
was submitted to the Judicial Council. The Council considered the matter at a
meeting held in Denver, Colorado, on December 2. 1957, and considered it fur-
ther at a meeting held in Denver on January 8, 1958. All members of the Council
were present and participated in both meetings. At the meeting held on January
8, the Chief Judge and the Associate Judge of the Court for the District of
Utah were present in person; each .><ubmitted an extended verbal statement;
and the Chief Judge submitted a statement in writing.
The Council Finds :
(1) The Judges of the United States District Court for the District of Utah
are unable to agree upon the adoption of rules or orders for the division of the
business of, and the assignment of cases pending in, that Court ; and
(2) The effective and expeditious administration of the business of the United
States District Court for the District of Utah requires the Council to make this
order under the power and authority granted to it by 18 U.S.C. §§ 137 and 332.
Accordingly, it is ORDERED:
(1) For the purpose of the division of business and the assignment of cases
made herein the Judge of the United States District Court for the District of
Utah who is senior in commission is designated as "Chief Judge" and the
other Judge is designated as "Associate Judge."
(2) All cases which are filed before the effective date of this order shall
be assigned in accordance with the practice now existing in the Court. All
business arising, and all cases filed, on and after the effective date of this order
shall be divided and assigned as herein provided.
(3) All criminal proceedings, including cases instituted under the Federal
Juvenile Delinquency Act, removal cases, and complaints for the apprehension
of material witnesses, are assigned to and shall be handled by the Chief Judge
in each even numbered calendar year and are assigned to and shall be handled
l)y the Associate Judge in each odd numbered calendar year. The Judge to whom
the criminal proceedings are assigned in any calendar year shall have full con-
trol over and responsibility for the call and discharge of grand juries, the return
of indictments, arraignments, cases under the Federal Juvenile Delinquency
Act, complaints for the apprehension of material witnesses, and all other crimi-
nal proceedings. All cases arising either by indictment returned or information
filed during the period in which a particular Judge is assigned to handle crimi-
nal proceedings shall remain assigned to that Judge even though they are not
t^oncluded within such i^eriod. Proceedings under 28 U.S.C. § 2255 are assigned
to and shall be handled by the Judge who imposed the sentence involved therein.
(4) AH proceedings under the bankruptcy laws of the United States, under
the immigration laws of the United States, and under the naturalization laws
of the United States, except criminal proceedings arising under such bank-
ruptcy, immigration, or naturalization laws, are assigned to and shall be han-
dled by the Chief Judge in each odd numbered calendar year and are assigned
to and shall be handled by the Associate Judge in each even numbered calendar
year. All proceedings instituted under either the bankruptcy laws, the immigra-
tion laws, or naturalization laws during the period in which a particular Judge
is assigned to handle such proceedings shall remain assigned to that Judge
even though they are not concluded within such period.
(5) (a) The term "civil cases" when used herein shall include all cases and
proceedings other than criminal, bankruptcy, immigration, naturalization, and
28 U.S.C. § 2255 cases and proceedings. Every civil case when filed shall be
given and identifying number and shall forthwith be assigned to one of the
Judges of the Court as herein provided.
(b) For the a.ssignment of civil cases the Clerk shall prepare a set of not less
than fifty nor more than one hundred cards. On one-half of such cards the
designation "Chief Judge" shall appear and on the other one-half thereof the
designation "Associate Judge" shall appear. The Clerk shall also prepare a
208
set of envelopes equal in number to that of the cards. The envelopes shall be
made of material which is not transparent and shall be numbered in sequence
beginning with the number of the first civil case filed on or after the effective
date of this order. The cards shall then be so mixed that the cards bearing the
designation "Chief Judge" and the cards bearing the designation "Associate
Judge" shall be in irregular and unknown sequence. One card shall be inserted
in each envelope in such manner that no one shall know the designation appear-
ing on such card. The envelopes shall then be sealed, placed in numerical
sequence and kept by the Clerk in a safe place. As each civil case is filed the
Clerk shall take the envelope bearing the docket number of that case and
remove the card therefrom. The case then becomes assigned to the Judge whose
designation appears on such card. Both the envelope and the card shall be
affixed to the file cover of the case. As required, the Clerk shall prepare and use
new sets of cards and envelopes. The sequence of numbers on each new set of
envelopes shall begin with the number which follows in sequence the last num-
ber of the previous set. The Clerk shall administer this method of assignment
so as to prevent any predetermination of the Judge to whom a case shall be ~
assigned and so as to bring about an equal division of the civil cases between
the two Judges.
(c) No order shall be entered in any civil case until it is filed and assigned
except :
(i) An application to proceed in forma pauperis in any civil case shall be
heard and determined by the Chief Judge if he is available and otherwise by
the Associate Judge.
(ii) If any civil case is filed with a Judge as permitted by Rule 5(e) of the
Federal Rules of Civil Procedure and such case requires immediate action, the
Judge with whom the case is filed may take such action as he deems appropriate
and then shall forthwith transmit the papers in the case to the Clerk for docket-
ing and assignment as herein provided.
(d) AVhen civil cases involving a common question of law or fact are assigned
to different Judges and a consolidation is proper under Rule 42 of the Federal
Rules of Civil Procedure, either Judge may order a consolidation. Such con-
solidated action then becomes assigned to the Judge to whom was assigned
the consolidated case bearing the lowest docket number.
(6) If a Judge is disqualified to act, or recuses himself, in any case or pro-
ceeding assigned to him, the case or proceeding shall then be assigned to the
other Judge.
(7) If immediate action is necessary in any case or proceeding assigned to a
particular Judge and that Judge is unavailable for any reason, the other Judge
shall hear and dispose of the matter requiring immediate attention but such
action shall not constitute a re-assignment of the case or proceeding.
(8) The division of business and assignment of cases made herein may be
altered or modified by written order signed by both Judges and filed with the
Clerk.
(9) The effective date of this order is February 20, 1958.
(10) An original copy of this order shall be retained in the records of the
Council ; a duplicate original shall be forthwith transmitted to the Clerk of the
United States Court for the District of Utah to be imbedded in the records of
the court ; a copy shall be forthwith transmitted to the Chief Judge of the Court
for the District of Utah ; and a copy shall be forthwith transmitted to the Asso-
ciate Judge of such Court.
DONE by the Judicial Council of the Tenth Circuit this 20th day of January^
1958.
Sam C. Bratton.
Chief Judge.
Alfred Murrah.
Circuit Judge.
John C. Pickett,
Circuit Judge.
David T. Lewis,
Circuit Judge.
Jean S. Breitenstein,
Circuit Judge.
209
In the United States District Coukt for the District of Utah
Northern Division
In the Matter of the Division of Business and Assignment of Cases in
THE United States District Court for the District of Utah
order
During the year one of the judges of the court has the criminal calendar, that
judge also shall have assigned to him all of the civil cases tiled in the Northern
Division.
The Order of the Judical Council of the Tenth Circuit dated January 20, 1958,
is hereby amended to conform to the foregoing order.
This amendment shall take effect upon the signing of this order by both
judges and filing with the clerk and shall govern cases filed after the effective
date.
Done this 3rd day of May, 1962.
Chief Judge.
Associate Judge.
In the Judicial Council of the Tenth Circuit of the United States
March Session — 1965
In the Matter of the Division of Business and Assignment of Cases in the
United States Court for the District of Utah
order
A request having been made that the order of the Judicial Council dated
January 20, 1958, and pertaining to the division of business and assignment of
cases in the United States District Court for the District of Utah, be modified
and amended, and the Council having fully considered such request at meetings
held upon March 22 and 25, 1965, at Denver, Colorado, the Council now
Finds :
1. The order of the Judicial Council dated January 20, 1958, was, in accord
with paragraph (8) thereof, amended by order of the District Court dated May 3,
1962, and, as amended, is in full force and effect. Further reference to such
order shall include the amendment of May 3. 1962.
2. The effective and expeditious administration of the business of the United
States District Court for the District of Utah requires that such order be
amended and thus requires the Council to make this order imder the power and
authority granted to it by 28 U.S.C. §§ 137 and 332.
Accordingly, it is ordered :
That the order of the Judicial Council is amended to provide as follows :
1. During both even and odd numbered calendar years all criminal cases and
proceedings in the Central Division of the District of Utah shall be assigned
to the Chief Judge.
2. During both even and odd numbered calendar years all cases and proceedings
of whatever kind or nature in the Northern Division of the District of Utah
shall be assigned to the Associate Judge.
3. The said assignments shall be automatically made notwithstanding other
provisions of the order of the Judicial Council ; but except as necessarily changed
by this amendment the assignments, procedures, rules and other provisions of
tiie order of the Judicial Council shall remain in full force and effect.
210
4. This amendment shall become effective on January 1, 1966.
Dated this 24th day of May, 1965.
Chief Judge,
John C. Pickett,
Circuit Judge.
Circuit Judge.
Circuit Judge.
Circuit Judge.
>
Circuit Judge.
Exhibit "B"
affidavit
State of Utah,
County of Salt Lake, ss:
I, Hana Shirata, Deputy Clerk of the United States District Court, being first
duly sworn, do hereby make the following statements :
Duties in the Clerk's Office are many and varied. Certain matters, however,
take precedence and are expeditiously taken care of. Such matters include (1)
notification of counsel relative to orders signed by the court in their cases, and
(2) notices to counsel of matters set down for hearing. It is the practice of
this oflice to see that such notices to counsel are mailed out immediately upon
receipt of the signed orders, the setting of a hearing date, or designation of
a motion day.
Any situation in which emergency action is required by the court, such as
Temporary Restraining Orders, emergency Petition for Writ of Habaeas Corpus
in civil cases and bond hearings in criminal matters are immediately set down
for prompt disposition and generally disposed of as soon as counsel involved
can be notified, usually by telephone, to appear for hearing.
I am generally aware of the matters that transpire in the Clerk's Office and
very seldom are any complaints received from members of the Bar or other
courts about the manner in which the office is administered. When such com-
plaints have been made, they have been given prompt and due consideration
and appropriate action taken to remedy the problem. No complaints, to my
knowledge, as to the administration of this oflSce have been received from the
Clerk's Oflice of the Tenth Circuit Court of Appeals. Whenever suggestions
have been received from the Clerk's Office of the Tenth Circuit Court of Ap-
peals relative to records on appeal, the suggestions have received prompt at-
tention and have been achieved.
Hana Shirata.
Deputy Clerk.
Subscribed and sworn to before me this 13th day of May 1976.
Alan H. Jenkinson,
My Commission Expires : November 1.5, 1977.
Notary Public,
Exhibit "C"
affidavit
State of Utah,
County of Salt Lake, ss:
I. Ruth Bailey, Deputy Clerk in the United States District Court for the
District of Utah, do hereby make the following statement :
Records on appeals in most cases are prepared and transmitted to the Tenth
Circuit Court of Appeals by the end of the forty-day period allowed after the
filing of notice of appeal. Sixty days is allowed for ti-ansmittal of a record to
211
the Supreme Court of the United States. Reporters' transcripts of proceedings
are usually prepared within the time allowed. However, in some cases an ex-
tension is granted to allow the reporter to complete a transcript.
Ruth Bailey,
Deputy Clerk.
Subscribed and sworn to before me this 13th day of May 1976.
Alan II. Jenkinson,
Notary Piihlic.
My Commission Expires: November 1.". 1977.
SCHEDULE 1
U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE-CALENDAR STATUS
CRIMINAL CASES
Cases
Year pending Description
1968 2 Both secret indictments, defendants fugitives.
1973 1 Defendant a fugitive.
1974 5 Defendants fugitives in 2 cases. N Cr 74-22, Francis C. Lund (problem of extradition; tax
evasion charge). Cr 74-53, William Allen (avi/aiting sentence). Cr 74-54, Milton Rich
(retrial, hung jury before Judge Halbert).
1975 7 Defendant fugitive in 1 case. Includes 2 cases in w/hich circuit has stayed all proceedings:
Cr 75-76, Countryside Farms, et al. Cr 75-120, Lansing and Farley.
1976 15 3 cases awaiting trial.
Total 30
SCHEDULE 2
U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE— CALENDAR STATUS,
CIVIL CASES
Cases United
Year pending States Private Description
C 327-69, American Oil v. McMillan (retrial mandate).
C 21-70, James Jim v. State of Utah (hearing on determination of
disposition of case). C 171-70, U.S. v. Paul E. Reiman (property
needs to be resurveyed— mandate). C 274-70, Donald Boyd
Julander v. Ford Motor (retrial — mandate).
C 29-71, Walter E. Bronson v. American Metal Climax (ruling on
3d party complaint of American Metals v. Silver Bell— per
mandate).
1969.
1 ...
1
1970.
3
1
2
1971.
1 ...
1
1973..
8
2
6
1974..
1 19
4
15
1975..
118
30
88
1976..
Total
61
16
45
211
53
158
' Includes 3 cases already tried— awaiting filing of memos: C 74-171, Jack Wimmer v. USA and Stevenson (disposition
as to USA). C 74-184, Webb v. Blakely (court to prepare memo). C 74-287, Mary Larsen v. Ferris R. Kirkham (awaiting
filing of memo).
ScHEDLTLE 3 — U.S. District Court for the State of Utah
WILLIS W. RITTER, CHIEF JUDGE
Description of Status of Pending Cases
Criminal Cases: (Pending)
1968 — 2 criminal cases (both secret indictments, defendant fugitives).
1973— Cr 40-7.3— U.S. v. Xamik Mehmet Gungor (fugitive).
1974 — N Cr 74-22 — U.S. v. Francis C. Lund (Tax Evasion — problem of extra-
dition).
Cr 74-15— U.S. v. Carl Robert Taylor & Sherman Ramon McCrary
(fugitives).
Cr 74-18 — Secret Indictment.
212
Cr 74-r)3 — U.S. v. William Allen (awaitius sentence).
Cr 74-54 — U.S. t'. J. Milton Rich (awaiting retrial — hung jury btfore
Judge Halbert in original trial).
1075 — 6 cases awaiting trial (this includes 2 cases in which the Circuit has
stayed all proceedings Cr 75-76 Countryside Farms, et al. Cr 75-120
Lansing and Farley).
107(3 — 15 eases pending, including 3 cases awaiting trial.
Civil Cases: (Pending)
1969
C 327-G9 — American Oil v. Lawrence S. McMillan (Mandate).
1970
C 21-70 — James Jim v. State of Utah (Awaiting hearing on determination of
disposition of case and plaintiff's motion for award of attorneys'
fees ) .
C 171-70 — U.S. r. Paul E. Reiman (Mandate — property needs to be resurveyed).
C 274-70 — Donald Boyde Julander et al v. Ford Motor (Mandate — Retrial).
1971
C 20-71 — Walter E. Bronson, et al. t\ American Metal Climas (Mandate — Ruling
on third party complaint of American Metals v. Silver Bell follow-
ing filing of briefs).
1973
C 4.3-73— V-1 Oil V. Pat Griffin (Pretrial Order due May 14, 1976).
C 126-73 — Glenda Miera. et al. v. First Security Bank (Master appointed — •
Ronald N. Boyce).
C 223-73 — Cyril L. Jensen, et al. v. John L. Jackson, et al. (Matter stayed pend-
ing bankruptcy proceedings in Nevada: otherwise ready for trial).
C 268-73— Rio Vista Oil v. Union Oil (Pretrial Order June 1, 1976).
C 277-13 — Je Maintiendrai Club r. Trans-International Airlines (Pretrial Order
due June 1, 1976).
C 30S-73— Navajo Tribe of Indians v. Rogers C. B. Morton, et al. (Court will
not accept settlement — Indians to be brought before court for
hearing).
C 357-73 — Coca Cola Bottling v. Coca Cola Company (Jury trial after Septem-
ber 1,1976).
C 367-73— June Yivant et al. r. Trans Delta Oil, et al. (Case Reopened on
December 15, 1975 — violation of injunction by federal defendants).
1974
C 74-36 — Security Investor Protection Corp. v. Equidyne (Matter in Bankruptcy
Court).
C 74-64 — State of Utah v. Thomas S. Kleppe (Awaiting hearing — ruling on mo-
tions for summary judgment following filing of briefs on Apr. 16, 1976).
C 74-74 — Alanna L. McMahon v. BYU (Case transferred from Judge Anderson
Feb. 9, 1976).
C 74-12« — Kenneth Jim Rogers v. Credit Bureau of Salt Lake (Pretrial due).
C 74-14R and 74-1.5.5 — Douglas Barton v. Montgomery Ward (Mandate — re-
manded as to matter of dismissal ) .
C 174-171 — Jack L. Wimmer v. USA and Leland G. Stevenson (Awaiting dis-
position as to ITSA by court; jury trial result — no cause of action as to de-
fendant Stevenson).
C 74-200 — Brad R. Woodward et al. v. Terracor (Pretrial due).
C 74-216 — Stephen N. Putnam v. U.S. Dept. of Agriculture, et al. (Pretrial due
July 1,1976).
C 74-261 — CIT Leasing v. Stephenson's Inc. (Matter stayed — Chapter 11 bank-
ruptcy ) .
C 74-284 — Erwin Paul Youngreen, et al. v. Stanley Collins, et al. (Awaiting
trial).
C 74-287 — Mary J. Larsen v. Ferris R. Kirkham, et al. (Case tried; awaiting
filing of memos due May 18, 1976 ) .
C 74-296— A rd en Robinson v. London Commodity Options (Awaiting trial).
213
C 74-309— Debry and Hilton Travel Service v. Western Airlines & Sine Enter-
prises (Motion and Pretrial).
C 74-314 — U.S.A. for George Cassity r. R. J. Connors (Motion and Pretrial),
C 74-330 — Ray "NVardle v. Ute Indian (Awaiting jury trial).
C 74-354 — Security Exchange Commission v. Constitution Mint, et al. (Awaiting
trial).
C 74-360 — Sandra Peart v. Health Industries (Awaiting trial).
C 74-400 — Gordon B. Eastman, et al. v. Jerrold R. Morgan (Matter on Appeal).
1975 Cases Pending Case filing date
C 75-14 — Robert Rees Dansie v. Pioneer Gen-E-Motor Corp. Jan. 15, 1975.
( Motions and Trial ) .
C 75-19 — Joe A. Gallegos v. Casper A. Weinberger, Sec. Health Jan. 17, 1975.
(Hearing — Ruling of Court [memos tiled] ).
C 7.5-27 — U.S. Steel Corp. v. United Mine Workers et al. (Pre- Jan. 23, 1975.
trial).
C 75-33 — Jack Anderson, et al. v. Brimley Bros. Inc. (Hearing— Jan. 28, 1975.
Accounting).
C 75-53 — P.B.I. Freight Service v. Gates Rubber Co. et al. (Mo- Feb. 3, 1975.
C 75-63 — Joseph A. Espinosa v. Casper A. Weinberger, Sec. Feb. 13, 1975.
Health (Awaiting Final Papers). t^ , ^o r^
C 75-68— Allen L. Barbieri et al. v. Deseret Mfg. Corp., et al. * eb. 18, 197o.
( TriRl )
C 7,5-87 — DMH Co. t\ Courtesy Mobile Homes, et al. ( Motion )__ Feb. 27, 197.5.
C 75-88 — USA V. Motor Cargo (Matter stayed pending proceed- Feb. 27, 1975.
ingsbeforelCC, Mar. 25, 1975).
C 75-109 — Diana D. Smith v. Prudential Fed. Savings (Pre- ^^^ar. 1(, 19(o.
trial).
C 75-121— Palace Theatre Corp. v. D. AV. Harkness et al. (Pre- Mar, 24, 1975.
trial).
C 75-124— Theodore E. Glezos et al. v. Mary E. Blackett, et al. Mar. 25, 1975.
( Pending ApiJeal ) .
C 75-127— Geraldine Browning Farber et al. v. Walker Bank & Mar. 26, 1975.
Trust (Trial).
C 75-129 — Glenn C. Rowland v. Dos Americas, et al. (Awaiting Mar. 28, 1975.
Final Judgment due May 31, 1976).
C 75-133— Security Metals, Inc. v. C. W. "Mac" Mcintosh (Ap- Apr. 8, 1975.
plication for Default Judgment Hearing).
C 75-143 — Innoceuti Societa Pallacanestro v. Randall Denton Apr. 9, 1975.
(Pretrial).
C 75-151 — Murray First Thrift v. Fireman's Fund, et al. (Pre- Apr. 16, 1975.
trial).
C. 75-159 — Everett A. Muncy v. Casper A. Weinberger, Sec. Apr. 22, 1975.
Health (Pretrial).
C 7.5-102— Rulon R. Rich v. Casper A. Weinberger, Sec. Health Apr. 23, 1975.
(Pretrial).
C 75-163— R. W. Sims, et al, v. Moran Tank Co., Inc., et al. Apr. 23, 1975.
(Matter pending appeal).
C 75-160— Dante Menicucci v. Western Pacific RR et al. (Pre- Apr. 29, 1975.
trial).
C 75-169— Merle B. Albrechtsen v. William E. Higgins (Pre- Apr. 29, 1975.
trial).
C 75-171 — Acoustical Contractors, Inc. v. Richard Grant, et al. Apr. 30, 1975.
(Order to Show Cause).
C 75-17.5 — Duvels, Inc., et al. v. Kent Frizzell, Sec. Int. (Trial)— May 2, 1975.
C 75-184 — Abbott Laboratories v. Det^eret Pharmaceutical Co. May 9, 1975.
(Pretrial).
C 75-186 — Teddy A. Hellstrom v. Marilyn Kay Magnuson Ander- May 12, 1975.
sou Hellstrom (I'retrial).
C 7.5-192— Groban Supply Co. v. Abbott GM Diesel, Inc. (Pre- May 19, 1975.
trial).
C 7.5-203— Gloria R. Howard v. Dean Witter & Co. (Pretrial) — May 29, 1975.
C 75-207 — Xifk S. Kalokas v. Casper A. Weinberger, Sec. Health May 30, 1975.
(Awaiting Final Document).
214
C 75-219 — Dairymen Associates, Inc. v. Western General Dairies, June 9, 1975.
et al. (Possible Consolidation).
C 75-220— James C. Allen v. Samuel W. Smith (Trial) June 11, 1975
C 75-224 — Frank Martin, Sr., et al. v. Bradshaw Ford-Mercury, June 13, 1975.
Inc. (Pretrial).
C 7-5-227 — Cox Electronic Systems v. Digital Time Products June 13, 1975.
(Hearing-Default Judgment and Damages),
C 75-233— Ora G. Petersen v. Hayes Servo, Inc., et al, (Pre- June 17, 1975.
trial).
C 75-234— Drew D. Jurdan v. Deseret News Publishing (Pre- June 18, 1975.
trial),
C 75-249 — Jewel M. Mortensen v. Howard H. Callaway, Sec, June 26, 1975,
Army (Pretrial).
C 75-254 — Abraham M. Mohammed v. Howard H. Callaway, Sec. June 30, 1975.
Army (Pretrial).
C 75-2.J6 — Richard E. Hawkins, et al. v. Dean Witter & Co. July 1, 1975.
(Pretrial).
C 75-261— Melesiu Leka Katoa v. Edward Levi, Attorney Gen- July 7, 1975.
eral (Pretrial).
C 75-263— Joan E. Wilson v. USA (Pretrial) July 7, 197-5.
C 75-266— Ernest Edward Blake v. Joe Pfoutz, et al. (.Jury July 9, 1975.
Trial ) ,
C 75-270 — Joseph A, Winkler v. Derwood S. Staples, et al. (Pre- July 9, 1975.
trial).
C 75-271 — Earl Heizer v. Silver Bullion Excliauge, et al. July 10, 197-5.
(Trial).
C 75-27S— Randolph C. Hackford, et al. v. First Security Bank July 17, 1975.
(Motions and Trial).
C 75-28»— Sandra Ann Sullivan v. S. Rigby Wright, et al. (Jury July 18, 1975.
Trial). I
C 7.5-286 — John O. Espinoza v. Casper A. Weinberger, Sec. July 21, 1975.
Health (Pretrial).
C 75-290— Ronald E. Faulkner v. Monex International, et al. July 23, 1975.
(Pretrial).
C 7.5-291— Clyde Erekson, et al. v. Monex International et al. July 23, 1975.
(Pretrial).
C 75-294— Charles L. Peterson v. Secretary of Health, Educ. July 25, 1975.
Welfare (Pretrial).
C 75-299— T. C. Long v. Texaco, Inc., et al (Third Party Com- July 28, 1975.
plaintfiledMay 5, 1976).
C 7.5-305— USA et al. v. Douglas F. Wallace (Order to Show July 31, 1975.
Cause).
C 7.5-307 — Edward Brown Securities v. Jerry V. Strand, et al. Aug. 1, 1975.
(Pretrial).
C 75-313— Continental Account Servicing House v. Trans- Aug. 6, 1975.
American Collections (Motion for Summary Judgement).
C 75-318 — USA for Turpin's v. Horace Lloyd, et al. ( Pretrial) ___ Aug. 8, 1975.
C 75-326 — Judy Dianne Jorgensen, et al. v. Calvin L. Rampton, Aug. 12, 1975.
et al. (Pretrial).
C 75-331 — Joseph E. Dozier v. Kennecott Copper, et al. (Jury Aug 14, 1975.
Trial).
C 75-333— Dale B. Loveridge i\ Rondeau Pacifica, et al. ( Pre- Aug. 14, 1975.
trial).
C 75-346 — Ann Richardson v. Steven Smith, et al. (Pretrial) Aug. 21, 1975.
C 7.5-348 — Brenda Lyle, et al. v. Larry Larsen, et al. (Dis- Aug. 21, 1975.
missed — April 1, 1976).
C 75-350— J. Hartley Palmer, et al, v. Tooele Country, et al. Aug. 25, 1975.
(Awaiting Final Settlement Documents).
C 75-355— Gordon Lee Balka, M.D., Martin P. Hoffman, Sec. Aug. 26, 1975.
Armv, et al. (Pretrial).
C 7-5-356 — James DeBry, et al. v. Merrill, Lynch, Pierce (Mo- Aug. 27, 1975.
tions).
C 75-358— Trustees of Joint Masonry, et al. v. Alan Lougstaff Aug. 27, 1975.
(Pretrial).
C 75-360— Tekton, Inc. v. Robert B. Herzog. et al. (Trial) Aug. 28, 1975.
C 75-3()7 — Shield Development Co. v. Essex International, et al. Sept. 4, 1975.
(Pretrial).
215
C 75-370 — Holiday Inns, Inc. v. Beth Wride, et al. (Awaiting Sept. 9, 1975.
answers to interrogatories).
€ 75-374— Ronald C. Jones v. Richard D. Frost, et al. (Pre- Sept. 10, 1975.
trial).
C 75-375 — United States Steel v. United Mine Workers, et al. Sept. 10, 1975.
(Pretrial).
C 75-376— John T. Dunlop, Sec. Labor v. Paul W. Cox, et al. Sept. 11, 1975.
(Trial).
•C 7.5-377 — James Michael Anderson v. Ernest D. Wright, et al. Sept. 12, 1975.
(Jury Trial).
•C 75-380 — Margaret Dixon Fowler v. John Harrison Cunningham gept 16 1975
(Jury Trial). ' '
C 75-381 — Radix Corp. v. Paperwork Systems, Inc. (Pretrial) Sept. 17, 1975.
C 75-385 — Mamie Vaughn v. Charles Maxfleld Parrish, et al. Sept. 19*, 1975.
(Pretrial).
<3 7.5-397 — Rocky Mountain Helicopters v. Bell Helicopter et al. Oct. 2, 1975.
(Pretrial).
C 75-398 — Johnson Oil Co. v. Federal Energy Administration, Oct. 3, 1975.
et al. (Pretrial).
■C 75-399 — Perma-Pak, Inc. v. Kephart Communications et al. Oct. 3, 1975.
(Hearing — motion to dismiss).
C 75-403 — Melissa Stearman v. Tooele County School District, Oct. 8, 1975.
et al. (On appeal).
C 75-404 — Levi E. Mesteth v. Bertha Green, et al. (Hearing — Oct. 10, 1975.
motion to compel answers to interrogatories).
0 75—106 — Ardith Haynes v. J. C. Penney Company (Jury Oct. 15, 1975.
Trial).
C 75-408— Ute Indian Tribe v. State of Utah, et al. (Pretrial and Oct. 15, 1975.
Hearing — Objection to Interrogatories).
C 75-410 — Dale Pierre r. Ernest D. Wright, et al. (Amended Oct. 16, 1975.
Complaint to be filed).
<] 75-411— Richard Albiston, et al. v. Roger S. Kiger, etc. (Entry Oct. 16, 1975.
of appearance for defendant on Apr. 29, 1976).
C I'y-AVl — Samuel James, et al. v. David Franchina, et al. Oct. 16, 1975.
( Amended Complaint to be filed ) .
C 75-413 — Richard Roldan v. Ernest D. Wright, et al. (Hearing — Oct. 16, 1975.
Defendant's motion to consolidate or dismiss).
C 75-4i4_SEC V. Continental Gold & Silver, et al. (Pretrial)— Oct. 17, 1975.
C 75-415— Marilyn Hockett v. D and RG Railroad, et al. (Pre- Oct. 20, 1975.
0 7-,_416 — George Burch, et al. f. Don A. Stringham, et al. (On Oct. 21, 1975.
appeal). r^ <- oo ia-K
C 7.5-423 — John E. Price, et al. v. Five-Star Trucking, et al. '-'Ct. ^a, wtio.
(Hearing — Order to show cause — dismissal). n *- no ia-K
<3 75-424^ Vernon L. Richards, et al. v. E. J. Horton, et al. Oct. 23, 19*5.
(Pretrial). „
0 75-427 — USA et al. v. Jim McClellan (Hearing — Order to Oct. 24, 1975.
show cause).
0 75^30— Lloyd A. Smith, etc. v. GLS Livestock Mgt., et al. Oct. ^S, 19 ^D.
( ProtriRl ) .
C 7.5-433— Northwest Pipeline Corp. v. Beech Holdings, (Mo- Oct. 30, 1975.
C 7.5-437— Panelera et al. v. Paneltech Ltd., et al. (Hearing— Oct. 31, 1975.
Objections to production). ,. „ ^(\-K
<: 75-438— William Brian Davis v. David B. Corley, et al. -wov. 6, iy<o.
(Amended complaint filed Mar. 16, 1976). „.,_
C 75-439— Karen Mayne et al. v. Ernest D. Wright, et al. inov. 4, uo.
<;; 75-440— Leslie James Pearson v. Delmar Larson, (Pretrial)— ^ov. 4, 1975.
C 75-442— Parker-Hannifin Corp. v. Poly Seal, Inc., et al. iNov. o, ly^o.
(Awaiting answer to counterclaim). ^ „ _
<3 75-448— Louise H. Callahan, etc. v. Arnold Thayer, et al. i>ov. lu, iy<o.
( Matter to be settled or dismissed ) . tvt -. -i 1 n-K
C 75-449— Roy Velarde v. Kennecott Copper, Inc. (Trial) Nov. 11, 19(5.
<j 7r,-458— Charles R. Lehmer et al. v. Thomson & McKinnon Nov. 14, 19(5.
Auehincloss ( Pretrial ) .
216
C 75-459 — Leona M. Muir v. David Matthews, Sec. Health, Nov. 17, 1975.
etc. (Oral arguments),
C 75-461 — John Boundy v. Anaconda, et al. (Motion to dismiss; Nov. 18, 1975.
motion for summary judgment).
0 75^62 — Scott Paper Co. v. Interstate Contract Carrier (Pre- Nov. 18, 1975.
trial).
C 75-466 — Midgley Manor, Inc. v. John N. Baird, et al. (Pre- Nov. 19, 1975.
trial).
C 75-467 — Jerry Brewton, et al. v. Hon. Calvin L. Rampton, Nov. 19, 1975.
et al. (Amended complaint to be filed) .
C 75-469 — U.S. V. Major Oil Corporation, et al. (Master se- Nov. 21, 1975.
lected).
C 75-470— USA for Utah Foam v. Basin Plastic, et al. (Hear- Nov. 21, 1975.
ing — motion to dismiss and/or change of venue).
C 75-471 — John T. Dunlop, Sec. Labor i\ Magna Garfield Truck Nov. 24, 1975.
Lines (Hearing — consolidation and/or trial).
C 75-474 — Harvey B. Black, et ux v. E. Leon Harward (Pre- Nov. 24, 1975.
trial),
C 75-476 — Matrix Land Co. v. Eugene Hunt, et al. (Awaiting Nov. 26, 1975.
answer to cross claim ) .
C 75-479 — USA v. Mountain Empire Milk Co. (Motion for sum- Dec. 2, 1975.
mary judgment; motion for default judgment).
C 75^81 — Application of Administrator, National Credit Union Dec. 2, 1975.
(Hearing — order to show cause).
C 75^87— Stephen R. Bailey i?. C. W. Spilker, et al. (Motion
to remand ; defendant's motion to reconsider motion for sum- Dec. 4, 1975.
mary judgment).
C 75-490 — Gregory Backman v. Lowell G. Robinson, et al. Dec. 5, 1975.
( Pretrial ) .
C 75-495— Golden Villa Spa, Inc. v. Health Industries, Inc., Dec. 9, 1975.
et al. (On appeal).
C 75-497 — Melvin Stewart, et ux. v. Kennecott Copper (Pre- Dec. 10, 1975.
trial). _
C 75-498— La Verne Murdock v. Reserve Oil & Gas, et al. (Await- Dec. 11, 1975.
ing answer to cross claim).
C 75-499— Ross Perri v. David Gardner, Sec. Health, etc. ( Pre- Dec. 11, 1975.
trial) .
C 75-511— Mickey O. Purdue v. Ralph "Lucky" Dorrity, et al. Dec. 17, 1975.
( Pretrial ) .
C 75-512 — Jewel M. Mortensen v. Martin Hoffman, Sec. Army Dec. 19, 1975.
(Pretrial).
C 75-515 — USA V. Margaret Kreek Jacobsen (Trial) Dec. 22, 1975.
C 75-517— Pete Grosso v. David Mathews, Sec. Health, etc. Dec. 22, 1975.
(Pretrial).
C 75-519— Time Oil Co. v. Utah Coke & Chemical Co. (Pre- Dec. 23, 1975.
trial).
C 75-520— North American Indian Revivals v. Uintah & Ouray Dec. 24, 197o.
Indian, (Hearing — Defendant's motion to dismiss).
C 75-524 — Fred J. Laurito v. Expressions in Wax, et al. (Mo- Dec. 24, 1975.
tion for default judgment)
O 75-52.5— Valley Organ & Piano v. Kawai Piano (Pretrial)— Dec. 29, 1975.
C 75-528 — Neldon Oliver v. David Gardner, Sec. Health (Pre- Dec. 31, 1975.
trial).
C 75-.530 — Professional Freestyle Associates v. General Motors Dec. 31, 1975.
et al. (Pretrial).
C 7(1-1— John T. Dunlop, Sec. Labor v. Modular Fabricating Jan. 5, 1976.
(Trial) .
C 76-3 — Thomas W. Hoopes. I^avid W. Clayton r. Willis W. Jan. 5, 1976.
Ritter, et al. (Hearing — motion to disqualify Judge Ritter
3 lid motion to dismiss or alternatively summary judgment).
C 76-5— Arthur B. Diaz v. Western Pacific RR Co. (Jury) Jan. 9, 1976.
Trial). ^^ ^
C 76-6 — A & L Concrete Co. v. George L. Smith, et al. (Hear- Jan. 12, 10 .0.
ing — order to show cause why case should not be dismissed
for failure' to prosecute).
C 76-7— John E. Blazer r. Wadsworth Publishing Co. (Pre- Jan. 12, 1976.
trial).
217
C 76-10— John T. Dunlop, See. Labor v. Wm. Vriens, Jr., etc. Jan. 12, 1976.
( Judgment signed May 5, 197G ) .
C 76-12 — Roy S. Ludlow v. United Systems, Inc. (Hearing — Jan. 15, 1976.
order to show cause why default not taken).
C 76-13 — John Buxton et al. v. Diversified Resources, Inc. Jan. 16, 1976.
(Hearing— motion partial summary judgment; motion to
strike).
C 76-18— Tam Hailing v. USA (Rule 2255 of T 28 USC) Jan. 20, 1976.
C 76-22— Clyrou W. Mills v. Jimmy Dean Meat, et al. (Hear- Jan. 23, 1976.
ing — motion to. dismiss or transfer).
C 76-23— Kenneth M. Flake v. William R. Dees (Pretrial) Jan. 23, 1976.
C 76-24 — American National Enterprises, et al. v. Sun Classic, Jan. 26, 1976.
et al. (Pretrial).
C 76-27— John T. Dunlop, Sec. Labor v. Brent D. Popp, et al. Jan. 27, 1976.
(Pretrial)..
C 76-30— Richard L. Christensen v. Robert G. Pedersen, et al. Jan. 29, 1976.
(Pretrial).
C 76-32— Ray Cottrell v. Bingham Silver Lead Co., et al. (Hear- Feb. 2, 1976.
ing — order to show cause why case should not be dismissed for
failure to prosecute).
C 76-33— M. Peter Heilburn, et al. v. Snowbird, et al. (Hear- Feb. 3, 1976.
ing — motion for consolidation ; motion to dismiss).
C 76-35— Samuel Geist Rudy v. USA (Section 2255 of T 28 Feb. 4, 1976.
USC).
C 76-40— Bettie Lambsou, et al. v. Whitfield Transportation Feb. 10, 1976.
(Order to show cause why case should not be dismissed for
failure to prosecute).
C 76-41 — Thomas Edward Nissalke v. Wm. Daniels, et al. Feb. 11, 1976.
(Hearing — motion for more definite statement; motion to dis-
miss complaint; motion to strike).
C 76-44 — Dwayne B. Lovell v. Douglas Boulton, et al. (Pre- Feb. 13, 1976.
trial ) .
C 76-46 — Howard, Lewis & Peterson v. Imperial Trust, et al. Feb. 17, 1976.
(Pretrial).
C 76-rIi— Rocky Jlountain Arms Corp. v. Frank Tally et al. Feb. 20, 1976.
(Hearing — motion to dismiss).
C 76-53— Paul Williams t\ George Latimer, et al. (Hearing— Feb. 23, 1976.
Defendant's motion to dismiss).
C 76-54— Northern Pacific Capital Corp. v. Mt. States Resources Feb. 24, 1976.
Corp. (Pretrial).
C 76-55 — Audrey Joan Bundy t\ David A. Kimball, et aL (Pre- Feb. 25, 1976.
trial).
C 76-5&— Equitable Life Assurance Soc. v. Lowell D. Nielson Feb. 27, 1976.
et al. (Pretrial).
C 76-58 — Robert D. Sparrow v. Roland Anderson, et al. (Hear- Mar. 1, 1976.
ing — motions).
C 76-60— ICC V. Shippers Best Express, et al. (Possible settle- Mar. 2, 1976.
ment).
C 76-61— ICC r. Beehive State Agricultural Co-op, Inc. (Hear- Mar. 2, 1976.
ing — motion for stay until there is final and ultimate judicial
determination of issues raised).
C 76-65 — Ludeal Peterson v. Denver & Rio Grande RR (Pre- Mar. 4, 1976.
trial).
C 76-62 — Southern Utah Mineral Dev. v. Green Hornet Mining, Mar. 2, 1976.
et al. (Removal from state court).
C 76-73 — Wm. Harrison Richius r. Buena A'ista Poultry et al. Mar. 10, 1976.
(Pretrial).
C 76-74 — James A. Baird v. David Mathews, Sec. Health (Com- Mar. 12, 1976.
plaint filed March 12. 1976).
C 76-83— David Curry, et ux. v. Educoa Preschools, Inc., et al. Mar. 16, 1976.
(Hearing — order to show cause why case should not be dis-
missed for failure to prosecute).
C 76-85— SEC V. Premier Oil & Gas, Inc., et al. (All parties not Mar. 18, 1976.
yet served ) .
C 76-87 — Harvard G. Foulks v. Mrs. Patricia Everett, et al. Mar. 19, 1976.
(Hearing — defendant's motion to dismiss).
7S-67S— 76 15
218
C 76-90— Jewel M. Mortensen v. Martin Hoffman, Sec. Army Mar. 22, 1976.
(Case not at issue).
C 76-91— National Farm Lines v. ICC (Amended complaint filed Mar. 22, 1976.
April 1.5, 1976).
C 76-92— Gaynell Reyno etc. v. Betty B. Petersen (Hearing — de- Mar. 22, 1976.
fendant's motion to dismiss).
C 76-93— Lake Austin v. Operating Engineers Local 3, et al. Mar. 24, 1976.
(Awaiting on answer).
C 76-95 — Wilbur O. Nelson et al. v. USA (Case not at issue) Mar, 29, 1976.
C 76-96 — A B B Mac Hand-Hand v. Donald C. Alexander, Com- Mar. 29, 1976.
IRS (Case not at issue).
C 76-98— Paul T. Moore v. Burton Lumber & Hardware (Pre- Apr, 1, 1976.
trial).
C 76-99— Thill Marshall v. David Mathews, Sec. Health (Case Apr. 5, 1976.
not at issue).
C 76-103 — James E. McKay et ux. v. Travelers Insurance Co., Apr. 6, 1976.
et al. (Hearing — motion to bring in third party).
C 76-104 — Woodey B. Searle v. Lonnie Johnson ( Case not at j^pr. g, 1976.
issue).
C 76-10.5 — Lonnie Johnson v. Woody B. Searle (Case not at Apr. 6, 1976.
issue).
C 76-108 — Ersell Harris, Jr. v. Sam W. Smith, Warden (Case Apr. 7, 1976.
not at issue).
C 76-109— Walter P. Ross, et al. v. Ernest D. Wright et al. Apr. 7, 1976.
( Pretrial ) .
C 76-110 — Flying Diamond Oil Corp. v. Fireman's Fund Ins., Apr. 7, 1976.
et al. (Hearing — defendant's motion to dismiss).
C 76-115— Edwin B. Caswell v. United Refinery, Inc. ( Unable Apr. 12, 1976.
to serve defendant).
C 76-117 — William R. Kingeman, et ux. v. Mt. Spokane Chairlift Apr. 12 1976.
(No answer filed).
iC 76-119 — R. Kent Christofferson et al. v. Producers Livestock Apr. 13, 1976.
(Awaiting filing of answers).
C 76-120 — Gary L. Skeem v. All-Grain Company, et al. (Answer Apr. 14, 1976.
filed May 10, 1976 with counterclaim).
C 76-121 — Reed H. Christofferson v. Producers Livestock Loan Apr. 14, 1976.
Co. (Awaiting filing of answers).
C 76-127 — Joan A. Moore etc. v. Thompson Equipment Co., et al. Apr. 21, 1976.
( Amended complaint filed May 3, 1976 ) .
C 76-128 — Robert J. Pinder, et al. v. Diversified Resources Corp. Apr. 21, 1976.
(No action to date).
C 76-1 29 — Do-It Dad Home Improvement Center v. Pro Hard- Apr. 22, 1976.
ware, Inc. (Awaiting filing of answer).
C 76-130 — Ernest Gene Gane v. Joe Fisher, etc. (Awaiting filing Apr. 22, 1976.
of answer).
C 76-132— Bill Daniels v. Snellen Johnson & Lyle Johnson (No Apr. 23, 1976.
action to date).
C 76-134— W. J. Usery, Jr., Sec. Labor v. Haynie, Tebbs & Smith Apr. 29, 1976.
(Awaiting filing of answer).
C 76-136— Utah Power & Light v. Thomas S. Kleppe, Sec. In- May 8, 1976.
terior.
C 76-140— USA and Ronald L. Jackson v. John William Will May 5, 1976.
219
SCHEDULE 4
U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER, CHIEF JUDGE— CASES CLOSED
Criminal Civil
Year (1975):
January
February
March
April
May
June
July
August
September
October
November
December
Total
Year (1976):
January
February -.
March
April
Total - - 43 114
SCHEDULE 5
U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH, WILLIS W. RITTER. CHIEF JUDGE- THE ASSIGNMENT OF ALL
CASES FILED PURSUANT TO ORDERS OF THE JUDICIAL COUNCIL
Year Civil i Criminal'
16
9
2
8
9
18
13
26
1
3
8
4
20
27
10
17
8
8
18
10
25
16
33
26
158
177
20
26
10
35
8
31
5
22
Chief judge.
1968
128
131
1969
213
S3
1970
174
S3
1971
152
83
1972
186
79
1973
198
6b
19:4
210
122
197b
265
136
2 1976
68
27
Year Civil* CiviM Criminal'
Associate judge - --
1968
122
33
57
1969
206
63
48
1970
173
51
41
1971
152
54
65
1972
188
73
55
1973
197
53
50
1974
196
60
28
1975
265
71
45
»1976
67
25
9
1 Central division.
2 Apr. 30.
' Northern division.
Note: Chief Judge takes all central division criminal cases. Associate judge takes all northern division criminal and civil
cases. Central division civil cases are disegnated through assignment cards.
220
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221
S. 1130 — Statement fob the Subcommittee on Judicial Administration,
United States Senate Judiciary Committee May 19, 1976
Mr. Chairman, members of the committee and staff : I am John J. Flynn,
a. resident of Utah and a member of the Massachusetts and Utah Bars. Since
1963 I have served as a member of the Faculty of the College of Law at the
University of Utah. I have also served as Special Counsel to the Antitrust
Subcommittee of the Senate Judiciary Committee from 1969-1970. In addition,
I have been a Visiting Professor of Law at the University of Michigan, George-
town University and the University of Texas. During the coming academic
year. I shall serve as a Visiting Professor of Law at Washington University
in St. Louis and the University of Pennsylvania in Philadelphia. The views
I express here do not represent any of the above institutions, nor do they
represent any client or the only United States Judge affected by the proposal
pending before the Committee. I speak for myself and my views are not
sponsored by or attributable to any other person.
In addition I have appeared as an attorney in courts at all levels of jurisdic-
tion including the United States Supreme Court and as a litigant, witness and
attorney in the Court of the present Chief Judge of the United States District
Court for the District of Utah. At present, I have no matters pending in that
Court nor do I expect to be a party or attorney to any proceedings in Chief
Judge Ritter's Court in the near future. My statement here does not represent
the views of any client — past, present or potential. I mention all this to avoid
the implications that some of the paranoid proponents of this legislation attach
to the fact that some of us speak up in defense of the Judge. Recusal motions
have become routine in Judge Ritter's Court as the crescendo of unfounded
right-wing criticism of him has risen in anticipation of the elections. Many
experienced lawyers, Republican, Democrats, and Independents have told me
that they would like to testify on this matter, but cannot afford to do so because
they will be met with unfounded recusal motions in pending cases by attorneys
who will seek to capitalize upon the controversy generated by right-wing
critics of Judge Ritter. Moreover, they have ethical concerns about the appear-
ances of defending the Judge in this matter by public testimony when they have
matters pending in his Court ; ethical constraints which do not restrain political
opponents of the Judge since many are not lawyers or they are lawyers who
do not regularly appear in his Court. Such a recusal motion is now pending
against the President of the Utah State Bar in an antitrust case because he
'delivered resolutions sponsored by Mr. Robert Hanson attacking the Judge
to Judge Ritter, upon the instructions of the State Bar Commission. The motion
is based upon a misleading aflBdavit attacking the integrity of one of the most
respected members of our Bar and is premised on a statute which doesn't even
applv to the circumstances involved.
Although I believe it is clear that this particular incident is grounds for the
serious consideration of taking disciplinary action against the attorney filing
the motion and his superiors, the Tenth Circuit has taken the matter under
advisement. The practical effects of all this are to tie-up litigation and seriously
jeopardize a client's right to counsel — a message not lost on a number of
-prominent attorneys with a substantial federal practice who would like to
testify on this matter. Since I do not regularly represent clients in the Utah
Federal Court, nor will I likely do so in the near future in light of my upcoming
year-long absence from the state, I am free from the risk of such tactics. I wish
to make clear that, although I speak only for myself, my views represent the
views of a substantial number of experienced attorneys who are appalled,
•disgusted, and deeply disturbed at these efforts to politicize a Federal Court.
They are not ex-insurance agents with no experience in the Federal Courts or
members of the Bar with little respect from their peers or experience in trial
■courts ; but leading members of the Bar with substantial experience in litigation
in many courts as well as that of Judge Ritter.
As a lawyer and a law professor, I have a deep and abiding interest in the
integrity of the courts, the protection of the independence of the Judiciary,
and the defense of the courts from imwarranted attacks or attempts to make
political gain from unfounded attacks upon the Judiciary. Over the past few
years I have found these commitments have involved me in speaking up against
unfounded, political and patently false charges against the sitting Chief Judge
of the United States District Court of Utah. I have done so not out of any
expected benefit or even friendship for the Judge involved : but out of a deep
conviction that the force of law in our society requires that the integrity of
222
courts be stoutly defended in order to maintain respect for the law as the
primary device for settling disputes in society and helping us all to grope
toward a better society and human condition.
I do not object to legitimate and factually based criticism of the courts or
of particular Judges since the fundamental function of the Judiciary is vital
to the process of Justice and the rule of law that we are all subject to. However,
there are boundaries to such criticism which, if exceeded, raise serious con-
stitutional issues and questions of the legitimate boundaries of fair criticism.
Those boundaries include the making of false and malicious charges, the attempt
to exploit luipopular court decisions for political gain, the politicizing of courts
to gain an advantage in the litigation process and attempts to coerce a sitting
judge out of office by means other than those specified by law and the Con-
stitution. When such criticisms are engaged in by attorneys or public office
holders they also raise serious ethical issues and substantial questions about
the integi-ity and motives of those who do so. Even the act of holding these
Hearings poses significant constitutional issues and risks to the integrity of
this Committee, since witnesses may exceed the boundaries of legitimate criti-
cism and seek to use this forum for purposes beyond the narrow factual issues
before the Committee.
The only issue before this Committee is the factual question of whether Judge
Hitter, the last sitting Chief Judge "grandfathered"' in under the Chief Judge
Retirement Act, is performing the duties of Chief Judge — largely administrative
duties in supervising the Court. In small districts, (Utah has only two sitting
Federal Judges) the administrative duties of Chief Judge are relatively minimal.
Case assignment is carried out by lot pursuant to rules established by the
Circuit Court and the major responsibilities remaining consist of appointing
court personnel and administrative duties of a ministerial character. I have not
observed nor do I think anyone can legitimately claim that the United States
District Court for Utah is or has been poorly administered. If anything, the
Court personnel and the dispatch of its business are outstanding.
The proposal for repealing the Grandfather Clause of the Chief Judge Retire-
ment Act has always puzzled me since I have never heard facts advanced to
support such an unusual step. Not understanding the thinking of such propo-
nents nor their motives or particular charge!*, it is difficult to respond. Pi-opo-
nents of the measure have continually advancetl ludicrous and assinine charges
that have little or nothing to do with the functions of a Chief Judge. It is diffi-
cult to determine whether such scattergun and irrelevant charges are the prod-
uct of excessive partisan ideology, political expediency for political gain, just
plain ignorance of the issues involved or a sincere but pathetic belief in a dis-
torted view of the legal process and the functions of an individual judge within
an independent judiciary.
The major criticisms by some of Judge Ritter have not been with his perform-
ance as Chief Judge; but with his performance as a Judge. Such matters are
not only beyond the subject matter of these Hearings, but they are constitution-
ally beyond the authority of the Senate. Should these Hearings stray beyond
the narrow facts involved in whether the Grandfather Clause should l>e re-
pealed into the fitness of a particular judge to hold the office of Judge, then it
is patently clear that witnesses will be seeking to use this Committee for pur-
poses beyond the power of the Committee. While that might not matter much
to some advocates of this bill, I am confident that the members of this Committee
do not subscribe to such a casual disregard for constitutional requirements nor
will the Committee tolerate such an abuse of the Senate's appropriate role in
our scheme of government.
It is also apparent to me that the proponents of this legislation have little
regard for the Bill of Attainder clause of the Constitution ; a practice so odious
that it was the only civil liberty guarantee expressly inserted in the original
Constitution. Critics of Judge Ritter seeking this legislation have made nu-
merous public statements which strongly indicate that they seek this legislation
in order to punish or discipline Judge Ritter for his iierformance on the bench —
not for any failure to perform the Chief Judge function. In light of the policies
enunciated in United States v. Brown. 381 U.S. 437 (196;")), a copy of which is
attached, it appears clear to me that the proponents of this bill are seeking to
use these Hearings and the passage of this bill to impose an unconstitutional
Bill of Attainder by legislatively removing Judge Ritter through a legislative
trial from the office of Chief Judge. If that proves to be their objective, it too
will be beyond the scope of these Hearings and the power of the Committee ; as
well as a commentary upon the integrity or intelligence of those who would even
223
attempt such a tactic. Ajrain, I trust the members of this Committee are above
this sort of thing and will not allow the processes of the Senate to be abused for
the political gain of some and the personal vendetta of others. To do so, not only
infringes upon the policies of the Bill of Attainder Clause but it also destroys
that fragile reed upon which courts and all of us must rely to protect the in-
tegrity of their pi-ocesses and the force of law — a due respect for the function
of an independent Judiciary.
Thus it is that I question the objective and scope of these Hearings — since
again I know of no factual basis upon which it can be shown that Judge Hitter
is not carrying out his functions as a Chief Judge. On the one hand, if the Com-
mittee permits an inquiry into Judge Ritter's performance as a Judge, it will
be trespassing upon constitutional functions of the House of Representatives ;
while on the other hand, if this Committee passes a bill to remove Judge Ritter
from the office of Chief Judge without a factual basis for doing so it will be-
recommending a law which clearly smacks of a Bill of Attainder. Were this not
enough, the issues here extend beyond infringement upon the constitutional pre-
rogatives of the House of Representatives and the Bill of Attainder limitations
upon the Congress. The integrity of the Judiciary is involved, the separation of
powers is involved, the integrity of the Senate is involved, the functioning of a
particular judge is involved, and the risk of utilizing the Senate to politicize the
courts is involved.
I know not how to respond to these risks other than being present at the Hear-
ing to listen to testimony, object to charges imrelated to the issues before this
Committee and respond to the specifics of any in-elevant charges that may be
made. In anticipation of these Hearings, I corresponded with the Committee
several weeks ago requesting to be notified of the Hearings and that I be given
an opportunity to testify. The only notice I have receive<i have been newspaper
accounts of the Hearing obviously provided by press releases from the office of
the "Junior" Senator from Utah. Having received no formal notice, invitation
to appear, or any idea what testimony may be offered by the proponents of the
bill, I can only offer the following observations in light of past comments made
by some critics of Judge Ritter in anticipation that they will be renewed in
these Hearings.
One such critic, Mr. Robert Hanson, an announced candidate for State Attor-
ney General, has waged a campaign of criticism of Judge Ritter. "While there
may be reason to believe there is a connection between Mr. Hanson's candidacy
for office and his campaign of criticism of Judge Ritter, I prefer to deal with
his criticisms on the factual basis of those criticisms. Simply stated, I have
heard all of Mr. Hanson's criticisms and have found no factual basis to support
them. One such criticism is that Judge Ritter is "arbitrary." While such a criti-
cism is irrelevant to the questions before this Committee, it has been my per-
.sonal exi)erience that the Judge is not any more or less arbitrary than other
strong minded Judges I have observed in other parts of the country. On occasion,
I have personally witnessed an arbitrary attitude on the part of the Judge with
certain classes of attorneys. Those classes of attorneys have generally consisted
of attorneys who are unprepared, incompetent attorneys, attorneys utilizing
delay by excessive motion practice, or attorneys making arguments or claims
the Judge believed irrational.
This last named class of attorneys is quite vocal and reflects an unusual state
of affairs in Utah. There tends to be a deep ideological split in the state. I believe
it is fair to categorize :\Ir. Robert Hanson and many others who are critical of
Judge Ritter as extremely conservative, while Judge Ritter is liberal on such
matters as civil liberties, labor legislation, minority rights and the Bill of
Rights guarantees of the Federal Constitution. The depth of this ideological
split and the problems it causes for a Federal Judge in Utah seeking to uphold
federal constitutional guarantees and federal law is best demonstrated by the
implications for federal court jurisdiction of rather bizarre actions by the con-
servative Utah Supreme Court — actions defended by Mr. Hanson and his associ-
ates in the office of the present Attorney General, Vernon Romney. For example,
the Utah Supreme Court has refused to follow binding decisions by the United
States Supreme Court interpreting the Fourth Amendment and vacating the
death penalties of prisoners in Utah. Most recently, the Utah Supreme Court
has held that the Bill of Rights of the Federal Constitution is inapplicable in
Utah because the Court believes the Fourteenth Amendment was unconstitu-
tionally adopted or does not incorporate the Bill of Rights in the Fourteenth
Amendment limitations upon the activities of the state. {State v. Phillips, 540
224
^ 2d 936 (1975).) Such a startling holding (copy attached) based on reasoning
ong since authoritatively rejected in every other court I know of, indicates the
lepth of the ideological split in the state and the intellectual "quality" of the
•onservative side of that split in the legal profession.
Judge Ritter, as the representative of the Federal Judiciary in Utah, often
Inds himself hearing cases one would not expect to observe being brought or
lefended elsewhere in the country. Where the i^tate Supreme Court, however,
efuses to give eiTect to federally guaranteed rights and remedies, the Federal
L'ourt becomes the focal point of conti-oversy and ideological criticism. Over the
^ears, I have become generally convinced that this ideological division is the
•oot cause of much of the criticism of Judge Ritter principally by those of a con-
servative political persuasion. They simply do not subscribe to his view of the
aw; a view generally in accord with interpretations elsewhere in the country.
[ leave to this Committee's judgment who is irrational, arbitrary, or wrong on
he law because of this bizarre state of the law in the state courts. A subsidiary
ibservation is the ))elief that this kind of criticism usually reaches its peak
Tom such sources on or about the time of state and federal elections, since it
ipparently makes for good copy in the local media.
Other criticisms from the past I can only deal with summarily. They are all
generally irrelevant to the issues before this Committee and the question of
.vhether the Grandfather Clause should be repealed. One such criticism is that
Judge Ritter has a high reversal rate. I know not how the reversal rates com-
lares to the total number of cases handled by his Court and not appealed or how
t compares to the reversal rate of other relatively activist judges. I have made
I study of many of the cases reversed and the quality of the decision-making by
Judge Ritter and the Tenth Circuit, since a high reversal rate can be a com-
mentary on the quality of the Circuit or the District Court reversed or both. In
iiany cases there was a division on the interpretation of the facts rather than
he law; in others Judge Ritter anticipated constitutional developments (i.e.
he right to counsel in parole revocation hearings) before the Circuit did so,
ind in still others one or the other side interpreted the law differently. As a
•student of Antitrust law, I can say with some degree of expertise that some of
he Circuit decisions in the Antitrust area reversing Judge Ritter are clearly
contrary to controlling precetlent and the weight of authority while the Ritter
opinions generally are in accord with current legal developments. I have at-
tached as an exhibit a recent antitrust case where the Tenth Circuit clearly
refused to follow the Supreme Court's standards set down in United States v.
Artiold Srhwinn for measuring the legality of vertical market restraints and the
fveight of the authority in other Circuits in trademark tying cases. Aside from
the .substantive issues in the case, a reading of the opinions and the reasoning
process of both courts — whatever result one thinks appropriate — ^should indicate
to any reasonable expert attorney in the field which Court one might criticize for
a lack of judiciousness and expertise of its opinion. Mr. Hanson has tried to
make much of reversal statistics without examining the relevance of his sta-
tistics or the individual cases involved. "While I never saw much relevance in Mr.
FTanson's statistics to begin vrith, I have been struck by the poor quality of the
Pircuit Court's decisions after reading through Tenth Circuit opinions revers-
ing Judge Ritter. Why this should be so might be a fruitful source of inquiry by
this Committee.
A further criticism of Judge Ritter, by some, is his recent dismissal of a fed-
eral grand jury that had been sitting for several months investigating Antltru.st
violations. This, too, raises an Interesting issue which I believe causes unjustified
and unwarranted criticism of Judge Ritter. He adheres to the view that the
right to indictment by a Grand Jury was in.serted in the Constitution to protect
the innocent by acting as an independent check upon the discretion of the
prosecutor. That is. of course, the clear constitutional function of Grand Juries.
In recent years, however, Grand Juries and their investigatory powers have been
converted to investigatory arms of the prosecutor's office— particularly where the
jurors sit for long periods of time. That was obviously the case with the Grand
Jury that was dismissed, since a member of that .Jury made several public
statements to the effect that dismissal of the Jury frustrated "their investiga-
tion." In part, this has happened because prosecutors lack other adequate In-
vestigatory powers In criminal cases, particularly In the area of complex white
collar crimes. Prosecutors thus use Grand Juries as investigative arms of the
prosecutor. This is an area which Congress should investigate since the con-
stitutional purpose of Grand Juries Is being violated to meet the modern de-
225
DLiands of law enforcement in complex and sophisticated white collar crimes.
Judge Hitter's position in opposition to long sitting Grand .luries used as iu-
Aestigative tools by prosecutors appears to me a defensible one; the prosecutor's
problems where a Judge enforces this clear constitutional limitation on the
function of Grand Juries is also an understandable one.
Neither side should be crtieized for their position nor should the question
become a political football which obscures the serioiis conllict between constitu-
tional liberties on the one side and the pragmatic and real needs of a prosecutor
on the other side. The remedy, of course, must come from Congress by reform-
ing the present system for investigating and prosecuting complex crimes rather
than penalizing a federal judge who is discharging his oath of office to uphold
the Constitution of the United States. 'Without belaboring the point, I think we
should retain the constitutional function of the Grand Jury as an independent
buffer to review the discretion of prosecutors and either provide by law for
investigatory grand juries to present proposed indictments to an independent
constitutional grand jury or expand by law the criminal investigatory authority
of prosecutors along the lines of the Civil Investigative Demand Authority of
the Antitrust Division. Criticism of Judge Ritter for dismissing a Grand Jury
which had become a tool of the prosecution is simple-minded and naive. It
betrays an ignorance of the historical and constitutional function of Grand
Juries.
It would unduly prolong this statement to anticipate other and similar criti-
cisms without factual foundation— criticisms I have heard made of Judge Ritter
and other federal judges in recent years by many with little understanding of
tlie functions of an independent judiciary. I must reiterate that I believe citi-
zens should feel free to disagree with and criticize court decisions. Such criti-
cism should be responsible, temperate and based on proven facts. 'When criticism
takes place in forums such as this, however, is aimed at a particular judge, and
becomes intemperate or without foundation in fact the issues involved become
far more complex and serious. Repealer of a Grandfather Clause is a highly
unusual step to be taken by Congress and should only be done on the basis
of an civerwhelming factual record supporting the case. No such case has or
could be made here. Repealer of a Grandfather Clause aimed at a single indi-
vidual should require an even higher standard of proof, since it smacks of a
Bill or Attainder, one of the most odious violations of civil liberties known to
Anglo-American law. Senate Hearings on the details of a particular judge's
performance in office also raise serious separation of powers issues and a
significant question about the appropriate allocation of powers between the
Senate and the House of Representatives. A further subtle reservation about
this proposal, these Hearings and some of the criticism one might expect to hear
presented is the substantial risk of politicizing the Judiciary and doing sub-
stantial harm to the appropriate functioning of a particular court. Political
expediency may justify some things ; but surely it does not justify the abuse
of the courts to gain political advantage.
Upon an appropriate and dispassionate weighing of all these factors, as well
as the absence of a factual record to support any claim that the functions of
Chief Judge are not being adequately carried out by the present Chief Judge
of the Federal District Court of Utah, I cannot see any basis upon which this
Committee can seriously consider, much less report, the proposal before this
Committee. Quite frankly, I cannot even understand why a Hearing would
be held at all. The integrity of the Senate, the function of an independent
judiciary, respect for constitutionally based principles and fairness to a judge
Avho has devoted twenty-five years to the federal judiciary and upholding the
Constitution and laws of the United States require summary rejection of the
proposal before this Committee. To do any less will only provide further
encouragement to those who place little weight upon the value of an inde-
pendent judiciary, appear to have little respect for fundamental values of the
Constitution and seem to have no respect for the functions and integrity of the
United States Senate.
Senator Bukdick. No-w, the subcommittee will stand in recess at
the 9mmd of the ^avel of the Chair.
["Wliereiipon, at 2:15 p.m.. the subcommittee adjourned, to
reconvene siibject to the call of the Chair.]
Pursuant to permission £:iven by the subcommittee, the following
additional statements were received for inclusion in the hearing-
226
record: from William J. Lockluirt, from Judge Willis W. Hitter, and
from Eobert B. Hansen.
Salt Lake City, Utah,
Jutie 10, 1976.
Re : Hearing on S. 1130 (by Senator Garn) held May 18, 1976.
Hon. QUENTIN N. BURDICK,
Chairman, Siihcommittee on Improvements in Judicial Machinery, Senate Com-
mittee on the Judiciary, U.S. Senate, Senate Office Building, Washington, D.C.
Dear Senator Burdick : This supplementary statement is submitted for the
record to respond brietly to certain matters suggested by the proponents of S.
1130 in their testimony before your Committee on May 18, 1976.
I heartily endorse your careful introductory statement that this proposal
presents only narrow issues — specifically, whether performance of the functions
of Chief Judge in the District of Utah is demonstrated to be inadequate, requir-
ing special Congressional intervention to repeal the Grandfather Clause which
leaves those functions in the hands of Chief .Judge Willis W. Ritter. Despite that
properly narrow and almost self-answering statement of the issue posed by S.
1130. it is tempting to go beyond the issues to answer the overdrawn and under-
supported statements of the two most heated proponents, Senator Garn and
Robert Hanson. It could not have escaped your observation that their statements
consisted of repeated assertions of ad hominem personal characterizations of
Judge Ritter, without the slightest offering of credible supporting details — and
with repeated similar performances before the TV cameras outside the hearing
room to promote their real purpose. Particularly offensive was Senator Garn's
suggestion that his imagined complaints against Judge Ritter were due to the
Judge's "age and whiskey."
One might almost be tempted to think that this effort to "try" Judge Ritter
was a puckish attempt to lobby for the Judicial Tenure Act by dramatizing the
abuses that can arise in the absence of confidential and procedurally fair pro-
ceedings for testing complaints against federal judges. But these obvious plays
to the hometown grandstand demonstrate their true political motivations. Al-
though Robert Hanson's post-hearing statement complains that there is "no
proof" of his political motivations, he utterly fails to refute my earlier observa-
tion that he has repeatedly attempted to "try" his charges in public forums,
first before the State Bar Association and now before this Committee, rather
than attempting to seek amicable resolution through appropriate requests for in-
quiry or assistance by appropriate officers of the Bar Association. With a double-
speak that would fit well in 19S4, he suggests that prior notice of his grossly
overdrawn resolutions seeking formal and public condemnation of Judge Ritter
by the Bar Association, which were simultaneously released to the local media,
constituted an effort at amicable settlement.
On the merits, of course, the material offered in support by Mr. Hanson, and
relied upon Senator Garn, tends mainly to illustrate Hanson's misapprehension
of approiu-iate procedure or of the applicable standards for recusal of a judge,
rather than any basis for sanctioning Judge Ritter. Thus, he suggests that the
Judge should be censured for his declination to discuss in chambers the merits
of Hanson's motions to recoup his failure to make service of process in his
private litigation — matters that obviously should be heard in public proceedings
on proper notice for hearing on rule day.
Probably most characteristic of the obvious sketchiness and carelessness of
Hanson's approach is his failure to recognize both the irrelevance and the in-
•completeness of his representations concerning Jude Ritter's reversal record.
Yet, in the absence of any showing of defiance of clear legal precedent, such an
ai'gument is irrelevant on its face, for the essence of the Constitutional inde-
pendence of federal judges is assurance of freedom for their substantive views —
which may result in a high reversal rate for some judges who think independ-
■ently. Hanson's complaints on this ground are akin to his equally-irrelevant
complaints about the judges' constitutional rulings which resulted in orders for
release of habeas corpus petitioners: his strong disagreement with the sub-
stantive result in those cases is converted, in his mind, to judicial misbehavior.
But most revealing of Hanson's careless approach and pei-sonal advocacy in this
matter is the incompleteness of his piu'ported compilation of Judge Ritter's
record. Although the compilation notes that it is limited to analysis of cases re-
ported in the federal reporter system, the significance of that limitation is not
acknowledged. He does not recognize that many routine cases are decided b.v
the Circuit under its practice of designating decisions as not for publication ;
227
:iior does he consider the fact that the published opinions, therefore, are more
likely to reflect strongly-held differences of substantive views.
As your able Chief Counsel so pointedly emphasized at the hearing, virtually
none of the ai-gunient offered by the current United States Attorney, Mr. Ramon
Child, dealt with issues pecuhar to the functions of a Chief Judge. With the
exception of his concerns about trial authority for a U.S. Magistrate, the matters
of which he complained reflect the kinds of tensions between the prosecutive arm
and the Courts that the judicial system provides ample opportunity to resolve.
But at least until recently, there simply was little disposition on the part of the
Justice Department to seek available remedies ; and if the issues were clearly
•drawn with appropriate formal requests from the United States Attorney, there is
little reason to suppose that they could not be resolved by negotiation or by ap-
propriate requests for supervisory orders.
At the same time, however, it is essential to recognize that many such matters —
particularly the differences over utilization of grand juries — reflect legitimate
and strongly-held differences of substantive viewpoint which are wholly inap-
propriate as a basis for legislative sanctions. Judge Ritter is conscientiously
concerned about the dangers that may arise from too close a relationship be-
tween prosecutors and members of a grand jury, and the ease with which a
prosecutor, with the aid of the investigative agents, can persuade a grand jury
to return an indictment. While I have complete faith in the integrity and fair-
ness of the Assistant United States Attorneys who handled grand jury matters
•during my tenure as United States Attorney, a judge concerned about those very
real dangers of the grand jury system may legitimately approach these matters
with a much different i>erspective. That difference of conscientious viewpoint
cannot justify imposition of a legislative sanction. Thus, with regard to the
grand jury issue, it is appropriate to note that Judge Ritter is far from alone in
his view of the need to take great care in averting the dangers of grand juries.
Enclosed are two recent editorials from the Salt Lake Tribune endorsing and
•elaborating Judge Ritter's concerns.
Finally, on the basis of the information available to me, it seemed that Judge
Lewis's comments about defiance of the 10th Circuit's orders were also over-
drawn. My recollection of your hearing is that he implietl there had been fre-
■(luent or general defiance of Circuit orders, but that he cited only one example;
a dispute arising from reallocation of pending cases at the time the other judge
on the Utah district bench resigned to accept senior judge status and was re-
placed by Judge Anderson. Because I represented Judge Ritter in connection
with mandamus proceedings before the 10th Circuit in tliat matter, and because
I left him in the lurch by moving to Washington, D.C.. at a crucial stage of that
proceeding, I feel a si>eclal obligation to clarify the record. Thus, the following
description reflects my understanding of the circumstances drawn from my
representation of the judge until I withdrew as counsel, and from my conversa-
tions with Judge Ritter.
Far from evincing an attitude of defiance or disregard of legal authority and
principle, that problem was handled wholly as a dispute of legal principle. The
difficulty arose because the Circuit rule for allocation of the ca.ses in the District
of Utah simply had not provided for reallocation of cases uix)n the retirement
of a sitting judge. It was our view, set forth in extensive and careful detail in
two substantial memoranda in the mandamus proceedings before the 10th Cir-
cuit, that the rule simply did not allocate those cases and that it was therefore
neces.sary for Judge Ritter to exercise the residual i>owers of Chief Judge in
that narrow situation to provide for proper assignment of those cases. It was
made very clear to the Circuit that we regarded the issues presented as sub-
stantive questions of importance to the role and function of the federal judiciary ;
and indeed, it is still my belief that we advanced the more substantial side of
the dispute. (Of course that is a difficult question to resolve because the Circuit's
opinion did not explain the basis for its disposition of a number of the legal
issues presented.)
Throughout my development and presentation of the Judge's position, he made
it very clear that it was his intention to seek a petition for writ of certiorari
from the Supreme Court if our position was rejected by the Circuit. Pursuant
to that pur))o.se, when the Circuit initially ordered the judge to relinquish the
■single case whose assignment remained at issue, I prepared and filed, on his be-
half, a motion for stay of execution of the mandate on that order "i>ending ap-
plication to this Court [the Circuit] for rehearing and to the Supreme Court of
the United States for a Writ of Certiorari to review the judgments of this
Court." Following my submission of a Petition for Rehearing, a new order was
228
entered denying the request for rehearing, but failing to rule on the application
for a stay pending application for certiorari.
Thus, at the time the Circuit's order came down, the Judge had clearly indi-
cated his intention to petition for Certiorari to review the decision and had re-
ceived no response to his motion to stay the order. Subsequently, and pursuant
1o his intent legally to contest the validity of the Circuit's order, he held a hear-
ing and made certain rulings in the disputed case. But thereafter, on the very
same day, he adopted an earlier telephone suggestion from Mr. Justice White
(10th Circuit Justice) by reconsidering his rulings and agreeing with Judges
Lewis and Anderson that the dispute should be settled by reassignment of the
disputed case to a judge from another district — a resolution which he promptly
implemented with orders first staying his rulings, and then rescinding them. Far
from reflecting the hardened defiance suggested by Judge Lewis, then, .Tndsre
Ritter's approach to this matter involved appropriate and substantial legal steps
to contest the matters on the merits and complete disavowal of any action that
could have been constriied as defiant.
I will be happy to respond to any further inquiries you may have.
Very truly yours,
William J. Lockhart.
Enclosures.
United States Dtstrtct Cottrt.
District of Utah,
Salt Lake City, Utah, June 25, 1976.
TfOn. Ql^XTIN N. BlTRDICK,
Chairman, Suheommittee on Improvements in Judicial Maehitiery, Senate Com-
mittee on the Judiciarp, U.S. Senate, Senate Offlee Bvilding, Washington,
B.C.
Pear Senator Bttrdick : Under separate cover, T have returned to you. as
you requested, the report of the proceedings, the statements and the exhibits
listed on the attached sheet. I wish to express to you my deep appreciation for
your courtesy in sending these documents on to me.
I also enclose two (2) copies of a letter dated .Tune lO. 1070 addressed to
Honorable Ouentin N. Burdick from William .7. Ijockhart. !Mr. Lockhart was
present at the hearings. He previously addressed to you the letter referred to
in Paragraph 7 of the inventory enclosed. Mr. Lockhart responds to some of
the charges leveled by Chief Judge Lewis of the Tenth Circuit. It is especially
important that this be included.
Tliirdly. T enclose two (2) copies of Statement for the Subcommittee on
Judicial Administration. United States Senate Judiciary Committee — S 11. SO
dated May 18. 1f)76. This statement was prepared by John J. Flynn. professor
of law at the University of Utah Law School, a member of the Massachusetts^
and Utah Bars, who also served as Special Counsel to the Antitrust Subcom-
mittee of the Senate Judiciary Committee from 1969-1970.
I send on the copies of John Flynn's statement because it is not clear from
the portions of the record that I have that his statement has heretofore been
submitted to the committee. I am particularlv anxious that this be included.
It was kind of you to extend to me thirty (30) days within which to make
any response T wished. Because it would be further multiplication of the ir-
relevant and immaterial, I have no further response. I am grateful for your
consideration.
Sincerely yours,
Willis Bitter.
Chief Judge.
Enclosure.
The Attorney General.
State of Utah.
Salt Lake City, Utah, May 21, 197<j..
Ee:S. 11R0.
Hon. OiTENTiN N. Bttrdick,
U.S. Senate. Committee on the Jndiriarjt. Suheommittee on rmproremmts m
Jvdirial Machinery. Dirksen Senate Office Bvildinfj. Washington. B.C.
Dear Senator Blt?dick : You will recall that after the hearing on Tuesday.
l\Iav IS. 197(i. I ineuired concerninsr the apnropriatenoss of my respondin°r to
certain remarks made by Mr. William J. Lockhart. You informed me that I
229
would be permitted to do so as long as the hearing record is open. This is my
response.
1. Prof. Lockhart charged that the subject bill is the result of a political
effort on my part to gain publicity. Since Mr. Lockhart offered no proof or
facts to support this charge, it is difficult to refute it other than to observe that
I certainly have no political intluence with Governor Rampton, who is of the
opposite political party, nor with the United States Judicial Conference, and
both of those parties are on record as favoring this bill. Any matter that af-
fects the public naturally receives attention. I can only assert, and do so
sincerely, that I have said and done what I have in this matter because I be-
lieve justice is too important to allow personal considerations such as Prof.
Lockhart's charges stand in the way of what is right.
2. Prof. Lockhart contended that there had been no efforts to resolve the
problems involving Judge Ritter quietly. This is not true. Judge Lewis later de-
tailed numerous such efforts he had made. I personally endeavored to talk
privately with Judge Ritter about such problems before filing the special writ
in case No. 73-167 (which was granted). Judge Ritter refused to even talk
to me about it. See a copy of my affidavit attached dated April 12, 1973, and a
copy of the affidavit of Elaine R. Larson, dated April 12, 1973. On December 30,
1975, I served a copy of the foregoing affidavits on Judge Ritter and Professor
Ijockhart in connection with proposed resolutions to be presented to the Utah
State Bar. I endeavored twice again last year to talk to Judge Ritter privately.
He refused. I would talk to him privately now if I could.
3. Prof. Lockhart claimed that the charges I made against Judge Ritter had
not been communicated to him so that he had a fair opportunity to resiwnd. That
is not true. Enclosed please find my affidavit that I served a copy of my state-
ment upon Judge Ritter prior to noon on Monday, May 17, 1976 (it had not
been finished until after 5 :00 p.m. on Friday, May 14, 1976, so this was the
earliest time it could be served when Judge Ritter was in his office). I enclose
an affidavit of my secretary which verifies that my affidavit was prepared on
May 17, 1976, and a copy sent to Judge Ritter that same date.
It was my impression from the hearing that you and the committee's counsel
viewed this bill as special legislation. I submit that it is the repeal of special
legislation.
Respectfully submitted,
Robert B. Hansen,
Deputy Attorney General.
Enclosures.
affidavit
State of Utah,
Cotinty of Salt Lake, ss :
Robert B. Hansen, being first duly sworn upon his oath, deposes and says :
1. He has been requested to appear as a witness before the United States
Senate Committee on the Judiciary, Subcommittee on Improvements in Judicial
Machinery, on May 18, 1976.
2. At 11 :15 a.m. on this date I delivered a copy of said statement to "Vicky
Jolley, secretary to Judge Ritter, and requested that she sign another copy of the
same acknowledging receipt of the copy left for the Judge.
3. The said Vicky Jolley read each page of the two copies and then refused to
sign that she had received one of them.
Dated this 17th day of May, 1976.
Robert B. Hansen.
Subscribed and sworn to before me this 17th day of May, 1976.
Elaine R. Larson,
Notary Publw.
My commission expires August 17, 1977.
I hereby certify that on the 17th day of May. 1976, a true and correct copy of
the foregoing Affidavit was mailed to Judge Willis W. Ritter, Chief Judge U.S.
District Court, 350 South State, Salt Lake City, Utah.
Elaine R. Larson,
affidavit
State of Utah,
County of Salt Lake, ss:
Elaine R. Larson, being first duly sworn upon her oath, deposes and says :
1. She is the personal secretary to Robert B. Hansen, Deputy Attorney General.
2. That on the 17th day of May, 1976, she typed to a receipt of service on a copy
230
of the prepared statement of Robert B. Hansen to the Committee on the Judi-
ciary, Subcommittee on Improvements in Judicial Machinery, as proof of service
of the same upon Judge Willis AV. Ritter.
3. Tliat after Judge Ritter's secretary refused to sign said receipt according ta
Robert B. Hansen, she subsequently typed the Affidavit of Robert B. Hansen,
dated May 17. 1976, the original of which is attached hereto.
4. That on May 17, 1976, she mailed a copy of said Affidavit to Judge Willis W.
Ritter.
Dated this 21st day of May, 1976.
Elaine R. Larson.
Subscribed and sworn to before me this 21st day of May, 1976.
Michael L. Cramer,
Notary Public.
My commission expires : August 18, 1979.
In the United States District Court for the District of Utah
affidavit
(Civil No. C-62-73)
James H. L. Lawler, plaintiff
V.
Ferron C. Losee, Andrew Barnum, George Rampton, Kenneth Huish, Rudy
IVERSON, RuDGER C. Atkin, H. Berneijl Lewis, Neal Lundberg, a. W.
McGregor, Wayne Whitehead, Monte Burton, Ruth Draper, James
Kimball, Howard Blood, the Estate of J. Ray Mills, Deceased, and John
Doe, Known Only by Actions and Not by Name, All Individually^
Defendants.
V.
State of Utah, Utah State Board of Higher Education, Peter W. Billings^
Chairman, Third Party Defendants.
State of Utah.
County of Salt Lake, ss:
Robert B. Hansen, being first duly sworn, deposes and says :
1. I am tlie attorney assigned by the Attorney General to repre.'^ent the
defendants Ferron C. Losee, Andrew Barnum, George Rampton, Kenneth Huisli,
and Rudv Iverson in the above entitled case.
2. On March 13, 1973, I wrote a letter to Chief Judge Willis W, Ritter con-
cerning this matter, a copy of which is attaclied as Exhibit "A". The letter re-
ferred to tlierein is attaclied as Exhibit "B"'. It was sent a day prior to Exhibit
"A" since I was then in St. George, Utah, consulting with my clients and taking
depositions and I called the Attorney General's office in Salt Lake City to request
Frank Nelson to order the transcript in question and dictated the letter to Judge
Ritter, which was dated tliat day and mailed on my return the next day.
3. I received no reply to my letter of March 13, 1973, referred to above, so I
requested that my secretary. Elaine R. Larson, arrange an appointment for me,,
tlirough the Judge's secretary, to meet with him and plaintiff's attorney, Jef-
ferson E. LeCates.
4. On March 26. 1973. I wrote Judge Ritter again since I had not received
a reply to my letter of March 13, 1973, and my secretary had been unsuccessful
in arranging an aiipointnient. A copy of that letter is attached as Exhibit "C".
5. On March 27. 1973, I asked my secretary to call Judge Ritter's secretary a&
frequently as it appeared in good taste to do so in order to arrange the requested
appointment.
6. On April 3. 1973, I received from plaintiff's counsel the Stipulation and
Order referred to in my March 26, 1973, letter and directed my secretary to mail
it to the Clerk of the Clerk.
7. On April 9. 1973, I went to the clerk's office to see if the Stipulation and
Order referred to above were signed and filed and I saw that said document liad
been received on April 4, 1973, but it was not filed and had not been signed by
Judge Ritter.
■ i\^ uioriMn T
3 9999 05994 985 7
8. Immediately after learning the facts set form in rue last paragraph, I went
to Judge Ritter's secretary's office and requested that I be given an apiwintment
and explained that my concern was that Judge Ritter had not signed the order
extending my client's time to plead. Judge Ritter was in at the time and his
secretary went into his chambers to discuss my request and returned with the
message tliat the Judge "would look at the file tomorrow."
9. I aslied my secretary on April 11, 1973, to continue her efforts to obtain an
appointment as I had heard nothing from the Judge nor his secretary since I
had been to the latter's office on April 9th.
10. On April 12, 1973, I went to the clerk's office to ascertain whether the order
in question had been signed. It was not. The Judge was not in and neither was his
secretary. I then requested of the Clerk of the Court a certified copy of the
Stipulation and Order referred to above and was advised that no certified copy
could be made of it.
DATED this 12th day of April, 1973.
Robert B. Hansen.
Subscribed and sworn to before me this 12th day of April, 1973.
Notary Public.
Commission expires.
Attorney General,
State of Utah,
Salt Lake City, Utah, March 13, 1973,
Re : Melvin T. Smith v. Ferron C. Losee, et. al.. Civil No. C 283-69.
Ms. Lucille IIallam,
Certified Shorthand, Reporter,
Post Office Building,
Salt Lake City, Utah
Dear Ms. Hallam : I am writing to you to request a transcript of the remarks
of Judge Willis W. Ritter made at the conclusion of the above case which I
understand was on the 9th day of September, 1970.
Please send the statement for these services to me and I will see that it is
promptly paid.
Please acknowledge receipt of this request and advise as to the time you expect
it will take to fill this order.
Yours truly,
Frank V. Nelson,
Assistant Attorney General.
March 13, 1973.
Re: James H. L. Lawler v. Ferron C. Losee, Andrew H. Barnum, et. al. Civil
No. C 62-73.
Hon. Willis W. Ritter,
Chief Judge, U.S. District Court,
Salt Lake City, Utah
Dear Judge Ritter : The defendants named above advise me that you made
some comments at the conclusion of the case of Melvin T. Smith v. Ferron C.
Losee, et. al., civil number C 283-69, on September 9, 1970. They have previously
been unsuccessful in their efforts to obtain a transcript of these remarks and
have requested our office to obtain that transcript. Accordingly, Mr. Frank V.
Nelson has placed that order, a copy of which is enclosed.
I am writing to you at this time to request that you authorize and direct your
reporter to prepare this transcript so that this matter might be studied on their
behalf.
If you do not feel that it is proper for this transcript to be prepared and sup-
plied to us on behalf of these defendants, I will appreciate your advising me as
to when I might consult with you in the presence of plaintiff's attorney concern-
ing this matter.
Yours truly,
Robert B. Hansen,
Deputy Attorney General,
Enclosure.
232
March 26, 1973.
Re : Lawler vs. Losee, et al.
Hon. Willis W. Ritteb,
U.S. District Court,
Salt Lake City, Utah
Dear Judge Ritteb : Enclosed is a draft of a stipulation and proposed order
which I believe is self-explanatory and which Mr. LeCates has indicated he will
recommend to his client be signed but he feels he cannot sign it until he has
express authority to do so.
As Mrs. Jensen has no doubt told you, I have had my secretary contact her
a number of times during the past week to make an appointment with you to
discuss the subject matter of this stipulation. It would be very much appreciated
if you would fix a time for myself and Mr. LeCates to meet with you on this
matter.
Very respectfully yours,
Robert B. Hansen,
Deputy Attorney General.
Enclosure.
In the United States District Court fob the District of Utah
affidavit
(Civil No. C-62-73)
James H. L. Lawler, Plaintiff, vs. Ferron C. Losee, et al.. Defendants.
EXHIBIT "D"
State of Utah,
County of Salt Lake, ss:
Elaine R. Larson, being first duly sworn, deposes and says :
1. I am the legal secretary for Robert B. Hansen, Deputy Attorney General,
who has been assigned to represent the principal defendants in the case of
.Tames H. L. Lawler v. Ferron C. Losee, et al.. United States District Court Case
No. C-62-73.
2. On March 21, 1973, the said Robert B. Hansen requested me to call Chief
Judge "Willis W. Ritter's secretary, Mrs. Jensen, for the purpose of obtaining an
appointment for Mr. Hansen and counsel for plaintiff to meet with Judge Ritter
concerning the above case. I called Mrs. Jensen and asked her to check with
the Judge about an appointment and call me back.
3. Ou March 27, 1973, I again called and asked about an appointment. Mrs.
Jensen said a letter from the Attorney General's oflSce came in the mail but the
Judge had not opened it yet. He was on the bench and she would check with him
about an appointment and call us.
4. On March 28, 1973, I called Mrs. Jensen again. She informed me that the
Judge had opened the letter. However, he did not say anything to Mrs. Jensen
about an appointment. She said she would ask the Judge about an appointment
when he gave the letter back to her.
5. On April 2, 1973. I called again. She said the Judge had not said anything
about an appointment and she could not check with him as he was on the bench.
6. On April 11, 1973, I called Mrs. Jensen again. She mentioned that Mr. Han-
sen was in yesterday and she got the file out. The Judge was not In. I asked her
to call me if she was able to get an appointment date.
7. At no time since my first call of March 21, 1973, has INIrs. Jensen called me
concerning this matter.
8. This is being typed by me after 5 :00 p.m. on April 12, 1973, and I have not
received a call from Mrs. Jensen or anyone else concerning the requested
appointment.
Dated this 12th day of April, 1973.
Elaine R. Larson.
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